How ‘intense’ is the use of the property on A1A?
In an affirmation of the judgment of the county’s planning director, Adam Mengel — but a blow to the hopes of many Hammock area residents — the county’s Planning and Development Board on Sept. 10 rejected the Hammock Community Association’s appeal of Mengel’s determination that a proposed boat storage facility would be a permitted use on a parcel of land that the County Commission had already approved for boat manufacturing.
The vote was 4-1, with board member Laureen Kornel dissenting. Board members Timothy Conner and Mike Goodman were absent.
The HCA is already planning to appeal the Planning Board’s decision to the Flagler County Commission.
"It’s a major commercial intrusion in an existing residential neighborhood."
— DENNIS BAYER, attorney representing the Hammock Community Association
“A lot of the discussion revolves around the intensity, that this is a less intense use: That was why Adam made the decision that he did,” said Dennis Clark, of the Hammock Community Association. “But it’s obvious that this is not a less intense use; it’s a much more intense use. So I think the decision they made was incorrect, so that’s why we’re going to go to the county commissioners.”
The county’s codes don’t specify a zoning district for boat storage.
The use of the land for boat manufacturing had been approved by the County Commission in 2000 as part of a rezoning process, according to county documents. Mengel determined that the proposed storage facility was a related but less intense use than the already-approved boat manufacturing use — boat building would presumably include some degree of boat storage, because builders need a place to keep their boats, he said — meaning that the land usage aspect of the proposal would not have to appear before the Planning Board for approval, as the use would already be permitted.
It landed before the board anyway because the Hammock Community Association filed a formal appeal of Mengel’s determination, and HCA members attended the Sept. 10 hearing wearing green shirts to show their opposition to the proposal.
The matter before the planning board, as board attorney Kate Stangle saw it, could be divided into two questions, she said: Had Mengel had the right, without the board’s input, to determine whether the proposed use constituted a “similar use” to the existing one? And, if he did have that right, had he made the correct determination?
From the HCA’s perspective, the proposed Hammock Harbour facility — which would include a large indoor boat storage facility, plus a restaurant and 120 parking spaces, on land currently occupied by much smaller manufacturing, storage, and office buildings — represents an increase in intensity, not a decrease.
The former boat building facility on the site hadn’t operated for about four years, and, back when it had, it had been limited to the construction of a single boat at a time, said attorney Dennis Bayer, representing the HCA. It also had just 12 parking spaces, he said. The new proposed facility would attract much more traffic and have a forklift running regularly, he said.
“This is not a continuation of an existing nonconforming use. ... We think that the process was wrong and the decision was wrong, because we think this is a much more intense use,” Bayer said. “So our position is it’s not just intensity: It’s the type of use, it’s the nature of the use, and it’s the massive expansion of what was there, and it’s not continuous in nature.”
Board member Mark Langello said his understanding was that the decision Mengel had made fell under Mengel’s purview.
As to the concerns that the proposed facility would draw increased traffic, Langello said, that could happen with other things that could be approved for that location under the current commercial zoning, too. And, he added, the law doesn’t allow counties and cities to de-facto prohibit legal businesses from operating by denying them zoning to do so.
A boat storage facility, by definition, would need to be along the water, and there aren’t any in the area currently, he said.
“It has to be allowed somewhere,” Langello said. “If something is legal, you can’t make it illegal by not having a zoning district for it. ... By default, this is one of the few parcels that could even be considered.”
But Kornel said that many cities and counties prohibit boat storage in residential areas.
“Typically it is discouraged up against residential,” she said. If she’d been in Mengel’s position, she added, she might have taken the matter to the board for consideration, “because it is very grey, and they are very different uses.”
Hammock resident Jan Sullivan, speaking during the meeting’s public comment period, said the proposed use was “certainly not less intense,” and added that the proposed restaurant would be very near one neighboring home.
Clark noted that commercial warehousing is explicitly prohibited in the zoning district, and boat storage would be even more disruptive, he said.
“Instead of a few trucks a day going in and out of a warehouse, what we have is 100 cars going in and out, and a forklift going all day,” he said. “I think this is not the same use as boat manufacturing.”