By Max Marbut & Mike Mendenhall • Staff Writers
An administrative law judge with the Florida Division of Administrative Hearings entered a recommended order in favor of the city in a dispute with San Marco residents and the nonprofit advocacy group Right Size San Marco Inc., who challenged Jacksonville’s authority to approve a proposed development in San Marco.
Administrative law Judge Francine Ffolkes entered the recommendation Aug. 10 after a final hearing in the complaint, which alleged the proposed building height for the 133-unit Park Place at San Marco and its density violate the San Marco neighborhood’s overlay provisions set in the city Land Development Code.
The issue at the hearing was whether a small scale development amendment to the city’s future land use map of the city’s 2030 Comprehensive Plan adopted by Ordinance 2019-750-E on Feb. 25 is “in compliance” as defined by state law.
San Marco-based Corner Lot Development Group, led by Andy Allen, and Birmingham, Alabama-based Harbert Realty Services want to develop the 2.87-acre project at 2137 Hendricks Ave. The project is proposed on a section of South Jacksonville Presbyterian Church property.
The development would carve out 2.09 acres of church property, leaving the main sanctuary building. A four-story, 133-unit apartment building is planned on the north side of the property and a two-story, three-level parking garage to the south.
San Marco residents Jonathan Livingston and Lakshmi Gopal and Right Size San Marco requested the administrative hearing to challenge the city’s adoption of the ordinance.
The specific purpose of Right Size San Marco, as stated in its articles of incorporation filed Feb. 11, is to “support, protect and preserve the historic character and beauty of San Marco, a historic residential neighborhood south of downtown Jacksonville and the St. Johns River.”
South Jacksonville Presbyterian Church Inc. and Alabama-based Harbert Realty Services LLC joined the City in defense of the challenge.
After reviewing the history of the proposal beginning with when it was introduced nearly a year ago to City Council, accounts of public hearings and accepting the testimony of city Director of Planning and Development William Killingsworth and two others accepted as experts in land use planning and development, comprehensive planning and zoning, Ffolkes ruled in favor of the city.
The petitioners contended that the city did not use the proper, or enough, data to review the proposal that was approved Feb. 25 when the ordinance was enacted by Council by a 17-1 vote.
The ruling states that, based upon the facts, the petitioners did not identify the data that they claimed the city failed to use in making its decision to approve the development.
“The fact that other data may be available is irrelevant, as long as the data upon which the city’s decision to adopt the FLUM Amendment is based is taken from professionally accepted sources and through professionally accepted methodologies,” Ffolkes wrote in the decision.
Much of the public debate on the amended ordinances focused on the methodology used by the city Planning and Development Department to determine the building height.
By averaging the proposed 49½-foot-tall apartment building and 26.8-foot-tall garage, Killingsworth told Council during the Feb. 25 debate on the final bills the project would comply with the zoning overlay, which caps buildings in the area at 35 feet.
He based his decision on the calculated weighted average as the “sum of the height to the predominant roofline of that portion of a building divided by the length of that portion of a building divided by the overall length of permissible building within the minimum setback,” according to Ordinance 2019-0750-E.
Opponents argued that because the weighted average calculation was proposed by the developer and not written in the overlay, it should not be allowed.
Killingsworth told the Council that while the overlay does state the maximum allowable height, it does not provide guidance on how it should be calculated.
The judge also ruled Aug. 10 that Right Size San Marco did not prove that the ordinance is not based on relevant and approved data and an analysis by the city, as required by law.
She ruled that the objection to the project was based solely upon the height of the proposed structure. However, “a challenged plan amendment must be viewed in the context of the guidance provided by the entire Comp Plan.”
The order concludes:
“Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Economic Opportunity enter a final order finding Ordinance No. 2019-750-E ‘in compliance’ as defined by section 163.3184(1)(b).
More legal challenges could start moving through the 4th Judicial Circuit Court in Duval County soon.
Livingston, Lakshmi Gopal and Right Size San Marco also filed a writ of certiorari on March 26 challenging the city’s rezoning of the property to a planned unit development. A writ of certiorari orders a lower court to deliver its record in a case so that the higher court may review it, according to the Cornell Law School Legal Information Institute.
That proceeding was on hold until the appeal’s final decision, according to a Right Size San Marco Facebook post May 20.