Developer, city win first round in San Marco lawsuit
Although it may not be over yet, the folks at South Jacksonville Presbyterian Church have received good news from a Florida administrative law judge in Tallahassee and are one step closer to being able to sell nearly three acres of their San Marco Square campus to an Alabama developer so that an apartment complex and parking garage can be built on the site.
On Aug. 10, Florida Administrative Judge Francine Ffolkes recommended in favor of the City of Jacksonville and its decision to approve the church’s amended application to rezone its property. The new zoning legislation, which was approved by the Jacksonville City Council, 17-1, on Feb. 25, allows for Park Place of San Marco, a 133-unit, four-story, 49.5-foot tall residential complex, to be built within the San Marco Overlay, a zoning ordinance that mandates buildings shall not exceed 35 feet within its boundaries.
Right Size San Marco, Inc., a grass-roots neighborhood group comprised of more than 800 members, had filed an appeal against the city with the State of Florida Division of Administrative Hearings (DOAH) questioning whether the City Council’s vote to approve a small scale development amendment to the 2030 Comprehensive Plan, is in compliance with state law. The 2030 Comprehensive Plan overshadows the San Marco Overlay and the City Zoning Code.
The site-specific amendment, which was added to the City’s future land-use map of the city’s 2030 Comprehensive Plan adopted by Ordinance 2019-750-E, enabled developer Harbert Realty Services of Birmingham, Ala., represented by Bill Ware of San Marco, and Corner Lot Development Group led by Andy Allen of San Marco, to use a calculated weighted-average height, which has never before been used in Jacksonville, instead of the strict height measurement of 35 feet mandated in the San Marco Overlay. The calculation averaged the 49.5-foot height of the residential building with the 26-foot height of the two-story parking garage that will also be built on the site so that the combined heights will not exceed 35 feet.
Although Judge Ffolkes sent out a recommendation consistent with the City’s argument, Right Size San Marco’s appeal is not over yet, said Paul Harden, an attorney working on the City’s case. “It needs to be reviewed by the Department of Economic Opportunity for a final ruling, but we anticipate a good result there. In the interim we will wait, but hopefully now we can start working together with the community and get a result everybody can be happy with. I know there is going to be some disappointment, but that’s part of the process. We’re going to be neighbors for the next hundred years so I’m hoping everybody will be at peace.”
Right Size San Marco filed several exceptions to the proposed order, which were due by Aug. 25, said Jon Livingston, a petitioner in the case before the DOAH court. Harden and the stable of attorneys representing the City, church, and the developers had 10 days to respond to the exceptions before the case is reviewed by the Department of Economic Opportunity for a final order.
Right Size San Marco has also filed a second appeal, a writ of certiorari, with the United States Court of Appeals to further review the case. A final-final appeal of the Department of Economic Opportunity’s final rule can be made to the Florida Cabinet, which is comprised of independently elected state officials including the attorney general, the commissioner of agriculture and the chief financial officer, but bringing something to the Florida Cabinet is very rarely done, said Harden. He added that he would be “shocked” if the Department of Economic Opportunity reversed Judge Ffolkes ruling. Harden also said he is not concerned about the writ of certiorari.
“They have filed a writ of certiorari but the rulings by the DOAH judge or the administrator of law judge are relatively final as to the writ issues as well,” he said. “We’ll see how they proceed. If they have good lawyers, they will recognize what I recognize, and that is it’s dispositive of the issues of a writ proceeding.”
Harden also said it is not his preference to waste a lot of time tied up in lawsuits with any development he represents, but that the time to go to court was inserted into the Park Place of San Marco developers’ time line so any holdup is not a big concern. “We had that in the timeline, and we anticipate moving forward with the project,” he said.
Livingston, a founder of Right Size San Marco along with Lakshmi Gopal, who is also a petitioner in the case, said he was disappointed with the judge’s order but is not willing to give up. He also reiterated that Right Size San Marco is not against a residential complex and parking garage being built on the site. The group’s opposition stems only from the height and density of the project and whether the San Marco Overlay was unlawfully set aside by the City to allow developers to push through the project. He said if the developer were willing to reduce the height of the apartment building to three stories, which would also reduce the number of apartments by 34 units, the neighborhood advocacy group would happily be in favor of the development.
“From the very beginning, Right Size San Marco’s goal was to maintain the character of this community,” said Livingston. “While we await the final order, we are currently discussing ramifications. In the end, the final ruling could not only affect San Marco’s historical character but all overlays throughout the city. Developers are drooling at the opportunity to use a weighted-average height to bypass set height restrictions and site-specific zoning to get around the standards currently in place. The impact would be significant, and neighborhoods throughout Jacksonville could unfortunately suffer.
“Was the judge’s ruling a disappointment? Yes definitely, but we knew this was not the end, and we are going to continue to fight for the right thing,” he continued. “It’s kind of a sad state for the way things are operating right now. The developer is dictating everything, and the City Council is going along with whatever they say because they want development. There has to be a stand taken on the code that is being put into the laws, and if you can’t go off that, what are we going to have in the future? We are going to have a mismatch of so many pieces of development around the city. I don’t think people are going to be pleased with Jacksonville in 15 or 20 years.”
In the meantime, Ware said the developers are going forward as planned and have submitted civil engineering plans to the city. Harbert has also received final architectural design plans, but has not yet submitted those yet, he said, adding that he expects to begin breaking ground in January.
“We are happy to have that ruling behind us, and we have a high level of confidence in our position going forward,” said Ware. “We don’t hold any ill feelings and hope they won’t either when it is all said and done. We think this project is a real benefit to San Marco and the community at large.”
Allen, who is Ware’s partner in the project, agreed. “We are excited to be one step closer to groundbreaking on this much needed project in San Marco,” he said. “We thank the community for its overwhelming support – minus a couple of signs – towards Park Place, and we look forward to help bringing the much-needed energy and patrons to our small businesses and restaurants in San Marco. San Marco is a wonderful place to call home,” said Allen.
Church officials said they are also pleased with the legal outcome so far. “We are encouraged by the judge’s decision to uphold the ordinance,” said Mark Middlebrook, an elder of South Jacksonville Presbyterian Church. “We are not in a position to predict whether Right Size San Marco will appeal the ruling or pursue an alternative remedy. We are continuing each and every day to work with our buyer toward closing the sale and to get Park Place built,” he said.
By Marcia Hodgson
Resident Community News
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