The dramatic anticipation at last week’s appeal hearing by Family Dollar before the Apalachicola city commission turned out to be short-lived.
No sooner had the March 11 hearing opened before a packed room when City Attorney Pat Floyd rose to advise commissioners that they ought to start the special exception process over again by sending the matter back to planning and zoning.
Panama City Beach developer Brett Woodward, represented by attorney Robert Hughes, was hoping city commissioners would reverse the Planning and Zoning Commission’s Nov. 18, 2013 vote that gave a resounding no to a proposal to relocate the store from its current site adjacent to the Gulfside IGA to a lot that neighbors the Best Western Inn.
Floyd told commissioners that the first question they must ask, before the content of the appeal, was whether or not Blue Current Development LLC had been provided a quasi-judicial hearing by P & Z. He said such a hearing is called for by case law, not by any particular stipulation in the city’s land development code.
A “quasi-judicial decision requires certain due process rights, regardless of merits,” he said. “Required and guaranteed are that applicant have the right to present evidence, crossexam witnesses have record established on which decision is based.”
Floyd said all parties involved would agree that “the unquestionable determination is that those requirements were not complied with as part of P & Z, were not provided at that level.
“My recommendation is you make decision to quash the decision that was made, and send it back to P and Z to do that procedure. Send it back and have them conducted properly and able to be done on its merits,” he said.
Commissioner Frank Cook moved, and Mitchell Bartley seconded, a motion to follow Floyd’s advice, and the motion passed unanimously without discussion.
Woodward did not speak at the hearing, and afterwards said he planned to continue his bid to secure a special exception as a retail specialty store under the terms of the C-3 commercial zoning. Woodward wants to construct a more than 8,300-square foot store on 1.16 acres at U.S. 98 and Clairmont.
“We have no other alternative but to go back and follow due process and all the administrative procedures as set forth,” he said.
Woodward, 47, said he has been developing for 19 years, mainly single-tenant retail projects. According to the appeal, Blue Current, if granted zoning approval, would develop and construct the store, and then receive rental income arising from lease arrangements between Blue Current and Family Dollar Stores, Inc.
“This is a first for me,” he said. “It’s unfortunate. I’ve been coming to Apalachicola a long time vacationing, My father in law grew up here; our family comes here three or four times a year.”
Woodward said that ever since the project began in April 2012, the process has been “an open book.
“I believe the Family Dollar was enhanced architecturally to look good. The landscaping package, it’s going to look good. A lot of things we’ve tried to do to make it the nicest store we’ve ever done,” he said. “I do believe the reason they want to relocate is they want to see more groceries. I believe that (once) a lot of people saw retail items they have access to, they would utilize it.”
Woodward said he believes his request for zoning approval “qualifies under the vague definition of specialty retail.”
That definition is sure to be an issue in P & Z’s upcoming revisit to the matter. Hughes admitted in his filing the city’s land development code does not include “published criteria” as to what constitutes a retail specialty store. But, he argued, rather than articulating the evidence that it relied on to makes its decision, P & Z relied on “improper, irrelevant, immaterial and inadmissible” comments of the public.
The lawyer has argued that P & Z’s unanimous vote in April 2012 to confirm that “the operation is consistent within the C-3 zoning district” led Woodward to spend about $302,000 on the project, including about $245,000 for the land, $24,000 for civil design work, $9,300 for legal fees, $9,000 for architectural work, $8,500 for surveying work, and $6,000 for environmental work.