Ross challenges city's Comprehensive Plan & zoning changes for property on Broome, N. 2nd Streets

Submitted by Suanne Z. Thamm

Reporter - News Analyst

July 9, 2017 9:20 p.m.

What can you do with city property that has been rezoned if someone decides to contest the zoning? Pretty much nothing in the short term. That is the situation facing property owners who rehabilitated a dilapidated house on Broome Street across from a city parking lot. Today the city cannot grant a Certificate of Occupancy (COO) to permit the owners to move into their rehabilitated house. Will that change soon – or ever?

Dr. Ronald J. "Chip" Ross has challenged Comprehensive Plan amendment and zoning change to Central Business District for properties that were previously zoned Industrial on North 2nd and Broome Streets.

The current situation developed in a highly unusual way. Robert and Loretta Erickson purchased property at 205 Broome Street. The property, zoned industrial at the time, contained a small house, which they rehabilitated. But because “residential” is a non-conforming use within an industrial district, the new owners could not move into the house they had purchased and renovated. Had the house been continuously occupied prior to their purchase, there would not have been a problem. But because the non-conforming use (“residential”) of the property had been in effect abandoned, residential use was no longer an option.  The house located at 211 Broome Street, which has been continuously occupied, is unaffected by the zoning change.

Dr. Ronald J. "Chip" Ross

The Fernandina Beach City Commission (FBCC) approved both a change in use and a change in zoning for the property at their June 6, 2017 Regular Meeting that would have allowed the Ericksons to move into their renovated house. But city activist Dr. Ronald J. “Chip” Ross has challenged the city’s actions as violative of Florida law and the city’s Comprehensive Plan. Ross, who lives a block away from the property in question, has filed two actions, one with the State Division of Administrative Hearings and the other in Circuit Court.

Ross formerly served on the city’s Planning Advisory Board and regularly speaks at FBCC meetings concerning land use and matters affecting the downtown area. He has filed to run for the City Commission seat currently held by Mayor/Commissioner Robin Lentz.

[For details, photos and maps of all the properties affected, see the Fernandina Observer article reporting the First Hearing of the ordinances: http://fernandinaobserver.com/2017/05/11/land-use-zoning-changes-proposed-for-n-2nd-broome-streets/. ]

While in his appeal and legal action he cites what he believes to be violations of the city’s Comprehensive Plan and state law, Ross has publicly opposed density increases in the Central Business District, the new land use and zoning categories the city approved for the Broome Street properties in question in addition to several parcels north of those properties on North Second Street. Ross’ objections do not appear to be personal to the property owners. Rather, his actions appear to stem from his conclusions that city actions have opened the area to the possibility of more intensive residential development.

Until these matters can be decided by the proper authorities, property owners in the challenged area are in limbo. They no longer have an industrial zoning, but they cannot proceed with actions consistent with the city-approved Central Business District land use and zoning.

According to Fernandina Beach City Attorney Tammi Bach, There is no relationship between the two actions Ross has filed against the city. The administrative appeal and the court case will each follow their separate courses independent of each other.

Section 163.3187(5)(a), Fla. Stats. provides the right of affected parties to file an administrative appeal on the Comprehensive Plan amendments. Administrative Law Judge (ALJ) Suzanne Van Wyk has been selected to hear the case on August 8, 2017 beginning at 9:00 a.m. in Fernandina Beach City Hall Chambers. The hearing is open to the public.

According to Bach, one day has been scheduled for the hearing, but Ross has indicated that he will call witnesses. The city’s outside counsel is asking for depositions from all the witnesses by the end of July.

The ALJ’s job is to rule on a relatively narrow question: Did the city violate the law in amending the Comprehensive Plan? Language in the statute requires that the Comprehensive plan amendment shall be determined to be in compliance if the local government’s determination that the amendment is “fairly debatable.” The Florida Supreme Court has stated that “the fairly debatable standard of review is a highly deferential standard requiring approval of a planning action if reasonable persons could differ as to propriety ..."

The ALJ has 30 days to rule on the question and must send her ruling to the Florida Department of Economic Opportunity. The entire process, which began on June 13, 2017, can take 90-120 days.

To track this case, readers may search the case number 17 - 003286GM on the state’s Division of Administrative Hearings website: https://www.doah.state.fl.us/ALJ/searchDOAH/default.asp

Ross filed his second action with Circuit Court last week in which he has challenged the city’s rezoning of the property under Section 163.3215(2) and(3), Florida Statutes, as an “aggrieved or adversely affected party.” Ross is seeking to prevent the City from taking action "which materially alters the use or density or intensity of use" on the Broome and North Second Street properties which he alleges is not consistent with the comprehensive plan. That action could take years to be resolved.

According to the statute, the term “aggrieved or adversely affected party” means any person or local government that will suffer an adverse effect to an interest protected or furthered by the local government comprehensive plan, including interests related to health and safety, police and fire protection service systems, densities or intensities of development, transportation facilities, health care facilities, equipment or services, and environmental or natural resources.

Ross must demonstrate that the adverse effect as to him or others "must exceed in degree the general interest in community good shared by all persons" as a result of the Comprehensive Plan amendment.

Fourth Judicial Circuit Judge Steven Fahlgren will hear this case. The matter has yet to be scheduled for a hearing.

UPDATE:  On July 3, attorneys for the City filed a Motion to Dismiss the Ross petition with the Division of Administrative Hearings. Ross replied on July 5. A telephonic hearing on the Motion to Dismiss has been scheduled for July 18, at 10:30 by the ALJ. Ross filed an additional response to the City's Motion on July 10.

CORRECTION:  In the initial publication of this article the author misidentified the house owners as the Claytons, who own Broome Street property on either side of 205 Broome.  The article has been corrected to reflect that Robert and Loretta Erickson own the house in question.  The Fernandina Observer regrets the error and thanks Mr. Holmes for clarification.

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.