No basis in law or fact: ALJ finds against Ross

Legal Analyst

November 9, 2017 5:26 p.m.

Administrative Law Judge Suzanne Van Wyk has found that City of Fernandina Beach Commission candidate Ronald “Chip” Ross’ challenge to action by the City related to property located at North 2^nd Street and Broome Street was based upon “inaccurate” contentions, that he “presented no relevant acceptable data or analysis which contradicted” that action and that he “did not prove” that the City’s action was in violation of Florida Law.

View of Broome Street properties from city parking lot

Ross, who lives on North 3rd Street, filed a Petition with the Division of Administrative Hearings contesting whether amendments to the City’s Comprehensive Plan in June 2017 were in compliance with Florida Statute.

The plan amendments affected eight contiguous parcels at the corner of North 2^nd Street and Broome Street which runs perpendicular to and ends at the City’s waterfront. 211 Broome Street is an existing single-family home, circa 1900; 205 Broome Street is a vacant single family home, circa 1900; 224 North 2^nd Street contains a multi-family structure, and the remaining parcels are undeveloped. The properties as of June 2017 were zoned “industrial” and therefore “residential” uses would not be permitted. However, 211 and 224 Broome are “grandfathered” from that prohibition. 205 Broome is in such disrepair that it cannot be redeveloped for residential use. The amendments were requested by the owners of the properties. The parcels are located in the City’s Community Redevelopment Area (CRA).

The City adopted, consistent with Florida Statute, a “Finding of Necessity” that specified an area of deterioration and “blight” in establishing the CRA. In 2004 in adopting the Waterfront Area CRA Redevelopment Plan the City found: “The Plan will afford maximum opportunity, consistent with the sound needs of the municipality as a whole, for the rehabilitation or redevelopment of the Area by private enterprise.”

The amendments to the Comprehensive Plan for these parcels would, among other permissible uses, permit single-family or duplex residential structures, as well as, mixed residential and business structures.

Ross made four claims alleging violations of policy, regulation and law by the City. Each was rejected and found without basis.

Ross’ argument that the plan amendments are required to be supported by relevant data and analysis as he alleged is mandated by City’s Housing policy which requires the City to “perform a housing needs assessment” was found to be without any merit by the Administrative Law Judge stating: “The cited policy does not prohibit the City from adopting any plan amendment until the assessment is completed.”

Ross’ contention that the amendments were somehow “inconsistent” with the Housing policy requiring that the City shall establish a “City-wide neighborhood planning program” was similarly rejected by the Administrative Law Judge finding that the policy “does not prohibit the City from adopting plan amendments until the neighborhood planning program is implemented.”

Ross’ claim that the amendments were “inconsistent” with a Florida Statute that requires that they be based upon relevant and appropriate data and analysis was also found to be without basis. The Administrative Law Judge ruled that the plan amendments “are supported by both the Findings of Necessity establishing, and the Redevelopment Plan for, the Waterfront Area CRA.” The Judge underscored the fact that the property owners requesting the amendments were seeking to redevelop a deteriorated residential structure, and reinvest in and develop the adjoining parcels which could not be accomplished without removing “the impediment” created by the prohibition on residential uses in the “industrial” category.

Ross’ assertion that the amendments someway run afoul of the City’s Future Land Use Policy was summarily denied. The Administrative Law Judge stating: “the issue is whether the … amendments are supported by data available at the time the amendments were adopted, not whether non-existent data may be contrary to the amendments.”

Based upon the Findings of Fact and Conclusions of Law the Administrative Law Judge recommended that the Department of Economic Opportunity issue a final order determining that City’s Comprehensive Plan amendments are in compliance with Florida law.

Ross has the right to submit written exceptions within 15 days from the date of the decision to that agency.

Ross will face Orlando Avila in a run off election on December 12, 2017 for Group 3 seat on the Fernandina Beach City Commission.

Adam Kaufman
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Editor's Note: Adam Kaufman, a graduate of Northwestern University Pritzker School of Law, is a retired attorney, mediator, and arbitrator.