Developers’ protest of new conditions required by commissioners last August leaves Board hamstrung

FORT PIERCE BEACH– With the requirement of a super-majority vote hanging over their heads, city commissioners found themselves once again in a marathon debate over the requested relocation of Cumberland Farms here slightly to the west, but this time unable to reach the necessary four-fifths vote. A handful of nearby residents and a quartet of lawyers lobbied the Commission on opposing points of view, forcing the Board to ultimately table the discussion for 90 days and seek outside help for hopefully bringing the matter to a final conclusion.

At the heart of the matter is the 2004-era Harbour Isle Planned Unit Development, a 1000-unit complex completed just prior to the crash in the housing market, which forced the original developer to auction off the units. The incorporated commercial sector never developed as a result of the ensuing recession, and only this year – 15 years later – a developer revived the first commercial parcel first approved years ago for a Publix supermarket that residents opposed and never materialized. In February, the Commission voted 4-1 to approve the Harbour Cay Shoppes development on one of the parcels with the condition that the developer provide cross access to the two parcels on either side in an effort to reduce the traffic impact on Seaway Drive. During that meeting, Harbour Isle residents protesting the approval of the shopping center mentioned the rumors of Cumberland Farms wanting to relocate to the eastern parcel.

Commissioner Thomas Perona cast the dissenting vote on the February approval, and expressed the same traffic concerns during the latest discussion that prompted his earlier no vote.

“I did not support that project for the traffic issues,” he reminded his fellow commissioners. “I would have been happy if we could have just stopped folks on Seaway heading west from being able to cross over into the Shoppes. You’d be directed to go through the roundabout, which is about 100 yards away and [then] enter in. I thought that was easy-peazy. The DOT [Department of Transportation] said that didn’t have to happen, and that was my answer.”

A super-majority vote of the Board is required due to the opposition of so many Harbour Isle residents to the Cumberland Farms. Commissioner Jeremiah Johnson, who dissented on the first two failed votes for approval Aug. 19, helped the Commission get a successful vote with the inclusion of two new conditions: eliminating left-turn movement in and out of the gas station – which shares a driveway with the retail component – and reinstating a rear entrance from Harbour Isles Drive that the retail developer had previously requested be removed. Those two conditions eased some of the A1A traffic worries of most of the Board except Mayor Linda Hudson, who cast the dissenting vote that evening. The matter came back to haunt commissioners Sept. 23 after lawyers for both Harbour Isle Shoppes and Cumberland Farms objected to the new conditions.

Orlando attorney Scott Glass argued the case for Cumberland Farms that evening, insisting the city had no legal right to limit turning movements in and out of the shared driveway because FDOT had already approved the access.

“I’m here to respectfully request that you remove the two conditions that you added to the proposed ordinance,” he said. “I would suggest that the two conditions are problematic. The first condition regarding the full-access driveway because it violates the legislative mandates set forth in Section 335284 Florida Statutes, and the second condition regarding the rear access because it violates the trust of the residents, the applicant and Cumberland who you directed to get together and try to come up with a site plan and a solution that at least the majority of the residents would be agreeable to.”

Mr. Glass was followed by Harbour Cay Shoppes co-owner Paul Hanna, who concurred.

“The change in our approval access associated with the Cumberland Farms approval will have a unique impact on us and our rights by taking away the city’s already approved left-turning access into our development. The access is a critical element to our development. We support approval of the Cumberland Farms application; however, we object to their conditions changing our access rights.”

Mr. Hanna expressed frustration that the second condition imposed by the Commission Aug. 19 was causing the Shoppes developer to go back on his promise to eliminate vehicular connectivity between the project and Harbour Isles. Commissioner Johnson got his fellow commissioners to agree to reinstate that access as a way of directing traffic to the roundabout at the entrance to the Harbour Isle development.

“Our word to the residents was to eliminate that approved driveway from 2003, and I feel awful that it’s come up this way,” Mr. Hanna said. “At the same time, we need the Cumberland Farms approval. If there is a solution that will work for all parties, we will participate in that so long as it doesn’t remove our full access on Seaway Drive.”

His business partner, Jupiter-based developer Craig Mason, then offered the Board a carrot, a promise to offer potential rear connectivity to the third parcel to the east, which has never had a development proposal to-date and may not receive FDOT approval for Seaway Drive access.

“We’ve come up with a potential solution,” he said. “We would be willing to grant a cross-access easement onto the property to the west, which currently has a site plan approval with a connection to Seaway Drive. So, we would like to honor our agreement with the residents, but we would like to have a cross-access easement, which keeps on the table at a future date the potential for connectivity throughout the site.”

A lawyer representing both the Harbour Isle East and Harbour Isle West condominium associations, Stuart-based attorney Deborah Ross, insisted the reopening of the rear access violated her clients’ right to due process since they had no idea it would be reinstated on Aug. 16.

“This not only deprived our clients of their legally conferred right to make an informed decision as to whether to participate and intervene in the consideration of 19-037, but it also deprived them of the opportunity to meaningfully research the effects of a substantial change on safety, traffic and maintenance issues impacting the associations,” she said.

Her law firm partner, Jacob Ensor, agreed.

“It was always agreed upon by the parties that Harbour Isle Drive would not be used for ingress and egress – that was the most important factor to our associations,” he said. “The change from the original application 19-003 to this is a fundamental and substantial change, and it deprives the associations and their residents from due process.”

Another attorney, Attorney Ralph Brooks, represented the two intervenors from the Aug. 16 quasi-judicial hearing and expressed the opposite viewpoint on the driveway conditions.

“Turning movements out of the PUD can be regulated by the local government,” he said. “You are regulating the driveway from a PUD, and you can certainly have right-turn-in/right-turn-out conditions. You can set that up to prevent the turning movements from going left in/left out because those are dangerous in that location.”

A handful of residents also spoke, including Anne-Marie Bode, who continued her opposition to the relocation of the Cumberland Farms and insisted U.S. 1 would be a better location for a new modern convenience store.

“Every time I’ve been here, I’ve seen a lot of people come up and speak against this project,” she exclaimed. “Other than the suits that live out of town or the developer, no one else has come up here before you to say please do this, this is great. All I’ve seen is people come up here and say please don’t do this.”

One Harbour Isle homeowner, Keith Madison, did ask the Commission to not buckle under pressure to remove the August conditions.

“While the approval of this application at the first hearing was disappointing, the Commission did wisely recognize the dangers to public safety and included those two, very important conditions,” he said. “The front shared driveway is now right-in/right-out only, which Cumberland Farms wants removed, but their corporate goals are not more important than public safety. The rear connector driveway to Harbour Isle East will be added back in. As a resident of Harbour Isle East, I’m not looking forward to the additional traffic when leaving and entering my home. However, that inconvenience is much less important than public safety of all the residents and visitors using Seaway Drive.”

After the public discussion, commissioners further debated the issue and found themselves unable to reach a four-fifths consensus on two failed votes to remove either one or both conditions. The Board ultimately voted unanimously to table the issue until Dec. 2 and voted unanimously to have staff find a consultant to help them find a way to reach the necessary super-majority vote.

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