Right Size San Marco files appeal against city ruling on Park Place development
Although it received the city’s blessing, it won’t be clear sailing for the folks at South Jacksonville Presbyterian Church as they endeavor to sell nearly three acres of their San Marco Square campus to an Alabama developer so that a four-story, 133-unit apartment complex and parking garage can be built on the site.
Right Size San Marco, a grassroots neighborhood group comprised of more than 750 residents filed two appeals against the city during the last week of March, within 30 days of the City Council’s 17-1 vote Feb. 25, to approve the church’s amended application to rezone the property. The new zoning legislation allows a four-story, 49.5-foot residential complex to be built within the San Marco Overlay, a zoning ordinance that mandates buildings shall not exceed 35 feet within its boundaries.
In order to bring the development into compliance with the San Marco Overlay, the City Council voted to approve an amendment to the 2030 Comprehensive Plan, which overshadows the San Marco Overlay and City Zoning Code, enabling the developers to use a calculated weighted average height, which has never before been used in Jacksonville, instead of the strict height measurement of 35 feet. The calculation averaged the 49.5-foot height of the residential building with the 26-foot, two-story parking garage that will also be built on the site so that the combined heights will not exceed 35 feet.
With the rezoning in place, the church is under contract to sell its property to Harbert Realty of Birmingham, Ala., so that it can develop the property.
One of the appeals was filed with the Florida Division of Administration Hearings (DOAH) and the other was filed with the United States Court of Appeals for the Fourth Circuit, said Jon Livingston, one of the founders of Right Size San Marco.
Just days after City Council’s approval of the plan, Right Size San Marco raised more than $20,000 and hired Attorney Sidney F. Ansbacher of the St. Augustine law firm Upchurch Bailey and Upchurch to represent it and file the appeals, Livingston said. Ansbacher will replace the group’s former lawyer, Clifford Shepard of Shepard, Smith, Kohlmyer & Hand of Maitland, who advised the group prior to City Council’s vote, Livingston said.
The group is seeking to raise approximately $57,000 and has set up a Go Fund Me page at rightsizesanmarco.com to assist in its effort.
“To put this in perspective, if 150 residents each donate $233, that will cover it,” Livingston said, noting the group has received several private donations – many anonymous – and that one resident has agreed to match up to $10,000 in donations. He also said some residents of other areas in the city, such as Riverside and Arlington, that have zoning overlays, are making donations to support the appeal because they recognize that the City’s ruling has set a precedent and developers might try to use it as a way to overcome overlay height restrictions in their neighborhoods.
Joining Right Size San Marco in opposition to the plan as it went through city channels was the San Marco Preservation Society (SMPS). Both groups favored putting residential housing at that location, but objected to rezoning the property to Urban Priority, which allows the higher density of 60 units per acre and of the use of a calculated weight average height as a way to have the project conform to the San Marco Overlay.
However, the San Marco Preservation Society does not intend to support Right Size San Marco in its efforts to appeal, said President Linzee Ott. “SMPS has not been asked or approached to consider joining any appeals,” she said. “Even so, the idea was briefly discussed at this week’s board meeting. The board was disinterested in the idea of participating in an appeal.”
Livingston said he was disappointed in the Preservation Society’s reluctance to join and possibly lead the appeal.
“If the character of San Marco and the integrity of the San Marco Overlay are to be protected, oversight of developers needs to continue to ensure plans follow code,” said Livingston. “We need to keep a pulse on what’s happening in the surrounding community. Unfortunately, assuming the city planning department employees, as well as the City Council, will automatically stop projects from diluting the Overlay, is a fallacy. In our meetings with several councilmembers, it was clear that many didn’t know the zoning code that well. Most even suggested that they would follow our district councilmember’s desire. We believe that both of those factors were very evident in this project.
“The entire City Council, except for (At-Large Group 4) Councilmember Matt Carlucci, not only didn’t listen to the residents of the community, they voted for special interests championed by our district council member. Two councilmembers outside of our area even went so far as to say they would never do this to their constituents and community, yet, minutes later, they threw their support behind our district councilmember,” he continued, referring to District 14 Councilmember Randy DeFoor who represents Riverside, Avondale, Ortega and Murray Hill, and District 1 Councilmember Joyce Morgan, who represents Arlington. District 5 Councilmember LeAnna Cumber represents San Marco, San Jose and St. Nicholas including the area where the proposed project is to be built.
“To protect the San Marco Overlay, we need a community organization that isn’t afraid to oppose and fight projects that do not comply with the law, including appealing adverse decisions,” Livingston said. “If the appeal option isn’t on the table, then, as we have seen, the Overlay will be easily ignored. Many believe the San Marco Preservation Society should take this role. Since the San Marco Preservation Society has ‘preservation’ in its name, and presumably a goal of preserving and protecting the historic charm and character of San Marco, we believe it should be the organization on point for these issues. Not only does it need to work with developers to make sure they follow the laws set in place, but it also needs to stand firm to protect the Overlay, even if it means appealing a ruling.
“When the next local development starts to blur the lines of existing code, Right Size San Marco will be watching,” Livingston promised. “Until then, our desire is for the SMPS to join us in supporting this appeal and allocating resources to fight for the Overlay.”
Mark Middlebrook, an elder of South Jacksonville Presbyterian Church, said he wasn’t particularly concerned about the appeal as it is the city’s responsibility to deal with it.
“The appeal is not against Harbert Realty or South Jax Presbyterian Church. The appeal is against the city and is challenging the city’s authority,” he said. “The city feels confident, and its general counsel was fairly confident they were on firm ground, so we’ll find out.”
Middlebrook said that without any threat of appeal that construction or permitting on the project would not have started before July 2020. “So here we are in March. A lot can happen in the appeal. I don’t know how fast the appeal can be processed by the city, but it’s their responsibility. The permitting could be delayed beyond that time frame depending upon how long the appeal endures.”
Middlebrook said during the “due diligence” period, Harbert Realty paid the church an advance of $20,000 a month toward the eventual purchase price. “I can’t say that will be the case going forward. Those amounts were toward the purchase price. Nobody was going to be out any money. It was just to help us cover it because our property was off the market. We are negotiating modifications to the contract to cover what we are doing today.”
He also said the church’s existing contract with Harbert Realty does not deal with the possibility of an appeal, so it is currently working on an agreement between the buyer and seller on what to do during and after the appeal. “We have been working since the City Council meeting and before the City Council meeting to modify our contracts to account for an appeal period,” he said. “That has not been finalized. Harbert is still in it, and we still intend on selling to Harbert. We’ll see how it shakes out.”
By Marcia Hodgson
Resident Community News
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