Plans to build a new Family Dollar store on a prominent wooded lot along U.S. 98 at the western end of Apalachicola drew criticism Tuesday night, setting the stage for a possible confrontation with the store’s developer.



After listening to a series of concerns led by Apalachicola resident Jim Philyaw, city commissioners voted unanimously to have City Attorney Pat Floyd attend Monday night’s Planning and Zoning meeting, where the matter is expected to be on the agenda.



“For the last few months I’ve been concerned,” Philyaw told commissioners. “I keep hearing that the Family Dollar store is going to build an outlet across from my house.”



Philyaw, who said he had spent a number of years as a member of P and Z when the comprehensive plan was first approved several years ago, questioned whether P and Z had acted properly when it first granted the project a tentative go-ahead in April 2012.



Admitting that much of his knowledge on the matter had been gleaned second-hand, from talk on the street, Philyaw provided evidence to suggest P and Z lacked the authority to give the project its blessing, since the department store did not fall under the many possible special exceptions allowed in C-3 areas under the terms of the comp plan’s land use element.



“There’s not a shoe that fits in there for a Family Dollar store,” he said. “A convenient store on average has six to eight parking spaces. This proposal is for 44 parking places. None of them (special exceptions) even come close.”



Philyaw said the matter should have been referred to the board of adjustment to see whether a variance could be granted. “It is my understanding that this was never done,” he said.



Philyaw said he became concerned about what was happening with the 1.16-acre lot, just east of the Best Western Motel, when he noticed trees on the property had been tagged for removal. “There must be something going on,” he said. “As a citizen I fully expect the city commission and their appointed board to toe the mark and follow the dictates of the ordnance. It’s a residential neighborhood; there are uses permitted by the ordinance. What I would like to do is see us clear the air about this.”



City Administrator Betty Taylor-Webb responded to Philyaw’s concerns by outlining the process that began when the Family Dollar’s developer, Brett Woodward, came before P and Z on April 9, 2012.



She said Woodward had come to ask questions about appropriate signage, and that P and Z both had approved the smallest signs and said the project was “consistent with the C-3 district.” The vote in each case was unanimous, 5-0.



Taylor-Webb said Family Dollar moved forward on the project, including buying the property, but in November, after P and Z told the developers they would have to go through the special exception process, the matter was turned over to Floyd.



“It’s on the agenda for the Jan. 14 meeting. At this point I don’t know which way they’re going to go,” she said. “What P and Z did is read the intent of the zoned area. Special exceptions go through P and Z but it doesn’t fall in that category.”



Floyd tried to avoid a detailed discussion of the legal arguments that may ensue, stressing that it was premature to have the city commission weigh in on the matter. “The proper procedure is that P and Z is still handling this matter and they should handle this matter before it comes to this particular board.”



The city attorney said he had received a letter from the Family Dollar’s legal counsel asking about the status of the store’s application. “Suffice it to say there was a representation made to P and Z, and P and Z analyzed it and came to the conclusion it was in compliance, and then a letter was sent to this company. What they (Family Dollar) may be doing now may be different than what they represented to P and Z.”



Family Dollar has told the city that it bought the property after receiving the letter from the city, Floyd said.



“Two wrongs don’t make a right,” said Geoff Hewell, a P and Z member in the audience. “That’s the way we left it, that they needed a special exception. We didn’t approve anything; the only thing we approved that I know of is the signage, the size of the sign. We did say in our opinion that was allowed.”



Floyd said the meeting’s minutes suggested the go-ahead went further than just signage. “The minutes of the meeting say they discussed the use and there’s a determination that this use was ‘consistent with’ (the zoning),” said the attorney.



Floyd said Philyaw could make an appeal to the city regarding the P and Z action, but it remained unclear as to whether such an appeal now, nine months after P and Z’s actions, was within the required time frame. Taylor-Webb said she had received two other letters of concern from citizens concerned about the project.



Floyd touched on the legal implications of challenging the project now. “After the horse gets out of the barn, there are certain things that cannot be reversed without damage, without problems,” he said. “Whenever a government entity acts, rightly or wrongly, and there’s ‘justifiable reliance’ by a private citizen, that’s a principle of law. The question is does this situation fit within that principle?”



Commissioner Frank Cook said there may be other options available to the city outside of rescinding P and Z’s original determination. “We may be fortunate that we’re at the point that we are,” he said. “The project is not completed. There are other hoops that need to be gone though. At some point we may find that the project doesn’t work.



“All they were given was the idea that their project they intended to do fit the outline of the things we said they could do,” Cook said.



Floyd supported that perspective. “That’s what I want to give P and Z the opportunity to do,” he said. “Size, clearing, draining, etc., any one of which may be a problem. You have to go through the right procedures to do all this.”



Philyaw closed by reminding the city commissioners they needed to adhere closely to their rules.



“Somebody dropped the candy in the sand,” he said. “We’re right at point zero. We’ve got to start over in this process.”