March 30, A. More Protections Are Needed for the Wood Stork Rookery.

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Samuel Morris
6 years ago
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1 Via U.S. Mail and Mayor John Morrissey and City Council City of St. Marys 418 Osborne Street St. Marys, Georgia Re: Mill Site Rezoning Application Dear Mayor Morrissey and Members of City Council: The Southern Environmental Law Center (SELC) submits this letter to raise concerns about the rezoning proposal for the 722 acres of the former Durango Mill Site submitted by Port of St. Marys, LLC (the Applicant). The St. Marys Planning Commission recently voted to recommend approval of the rezoning subject to a list of special conditions. See Revised Special Conditions, Exhibit H (March 10, 2016). As a legal and policy organization with a commitment to protecting Georgia s coast, SELC has serious concerns about the rezoning proposal as it stands approved by the Planning Commission. While SELC commends the City s inclusion of certain special conditions at this juncture, should City Council approve the rezoning, we urge the adoption of one additional special condition and the denial of three. These changes are necessary to protect the public at large, natural resources on the site, and the character and history of St. Marys itself. SELC commends the City for including in the special conditions that the Applicant will cooperate with the Georgia Environmental Protection Division to achieve the Brownfield Corrective Action Plan. Special Condition #2. SELC also commends the waste storage restrictions which prohibit storing coal ash or refuse not generated on-site. Special Condition #6. Other limitations included in the special conditions are headed in the right direction, such as the limitation on volume of fuel storage on site and the limitation of permitted shipping facilities to shallow draft barges and vessels. Special Condition #11. A. More Protections Are Needed for the Wood Stork Rookery. Despite these improvements, the wood stork rookery was not adequately addressed by the Planning Commission and the special conditions. SELC therefore urges City Council to incorporate safeguards for the rookery in its forthcoming decision. Specifically, City Council should impose conditions on the rezoning to protect the wood stork rookery and the stormwater ponds that support the bird population.

2 Page 2 The wood stork colony that nests on the property is one of the most unique attributes of the site. U.S. Fish and Wildlife Service lists the wood stork as a threatened species under the Endangered Species Act. This rookery, known as the Gilman Rookery, had about 300 nests last year, making it one of the most productive rookeries in Georgia. The birds on the property also make use of the existing industrial stormwater ponds, which are an important component of the wood stork habitat. City Council should make every effort to protect the rookery as a special attribute of the property because it can serve as a very important eco-tourism attraction. Indeed, in its Staff Report for the Port of St. Marys Rezone Application, published on the City s website on February 11, 2016, the City recognized that the rookery is one of the most unique attributes of the site and a very sensitive landscape. Staff Report, 16. Moreover, the report stated that the rookery is zoned [Conservation Area], yet the [Applicant s rezoning application] does not provide any dedicated assurances. Id. A dedicated assurance would exist if the City required the Applicant to grant a conservation easement to protect the rookery on the property. As it stands, the Applicant proposes to construct a buffer and preserve this natural resource as long as wood storks are present on the property. Port of St. Marys Industrial & Logistics Center, Rezoning Application (Aug. 2015), at 2. This proposal alone does not guarantee adequate preservation of the colony or access for public viewing. We applaud the City on its efforts to provide a ten-foot wide non-motorized public access easement for the use of a multi-use path along the western boundary of the site, per Special Condition #7. Presumably, this path may be used for public viewing of the rookery. To gain the full benefit of this grant, the City should require the rookery be preserved in perpetuity. Ultimately, the City would benefit from a highly attractive destination that eco-tourists may visit in combination with Cumberland Island. Should City Council elect to approve the rezoning request, it should include a special condition to protect the rookery in perpetuity, which may be accomplished through the grant of a conservation easement. B. City Council Should Eliminate Other Special Exceptions. City Council should deny three of the special conditions that the Planning Commission incorporated into its rezoning decision because they amount to special exceptions made to benefit the Applicant at the expense of the public. Generally, Georgia law permits the inclusion of certain conditions in a rezoning decision, provided the conditions are designed to protect the public and neighboring property from the effects of rezoning. See Cross v. Hall County, 235 S.E.2d 379, 382 (Ga. 1977); see also Johnson v. Glenn, 273 S.E.2d 1, 2 (Ga. 1980). However, when conditions are imposed on rezoning for the benefit of the landowner and the rezoning applicant offered or proposed such conditions, such rezoning may be deemed invalid as contract zoning. See Cross, 235 S.E.2d at 383. Where the Planning Commission has recommended approval of certain special conditions that would benefit the Applicant at the expense of the

3 Page 3 public, the rezoning action may be open to legal challenge. Therefore, City Council should eliminate the following exceptions or special conditions from the zoning amendment. 1. Building Height Limitations Special Condition #3 would allow a developer to exceed the zoning code s height limitations if the developer provides all funds necessary for the City to purchase firefighting equipment and train personnel to combat fires in buildings of the proposed height. However, allowing the Applicant or any subsequent developer to construct buildings on the property that so significantly exceed the industrial zoning height limits would detract from the historic character of St. Marys. Under the St. Marys Zoning Ordinance, the maximum building height is 45 feet in a Light Industrial District and 60 feet in a General Industrial District. City of St. Marys Zoning Ordinances (c)(6), (c)(6). Regardless of whether a developer provides funds for the appropriate firefighting resources, buildings of 100 feet will diminish the current character of the historic district, which is an important draw for tourists. Therefore, City Council should deny the Applicant s request for building height exemptions and require any development to be executed in a manner consistent with the current zoning ordinances and the character of the historic district. 2. Special Use Permit Procedures Special Condition #1 would allow the Applicant to disregard the requirements imposed by the zoning code to (a) annually renew special use permits, and (b) obtain approval to transfer special use permits to other users. Section (5) of the St. Marys Zoning Ordinance requires permittees to annually renew special use permits for a nominal fee of $75, which provides the important function of allowing the City to annually review the compliance of the land use with the requirements and any special conditions. Indeed, the City recognized this important function of the annual renewal procedures in the Staff Report on the rezoning proposal: What is being requested [by the waiver of annual renewals] is a rendering of the Special Use Permit into a quasi-permitted Use, unless provisions are given for oversight and timing. The loss in revenue from the Special Uses granted are not as essential as the oversight that the process can provide. By severing the Special Use from the yearly annual fee... the owner or operator runs the risk of an operation becoming non-compliant and providing little recourse to the City for enforcement.

4 Page 4 Staff Report, 6 (emphasis added). If this is indeed the risk posed by exempting the Applicant from annual renewals, it is against the City s and residents best interests to waive this requirement. Section (4) provides that a special use permit is issued only to the permittee and is not transferable or assignable to another user, even if the use is unchanged. This provision provides a level of oversight to the City of these special uses that do not otherwise conform to zoning requirements. Again, the City recognizes this concern in its Staff Report, which emphasizes the importance of City oversight. Staff Report, 5. These two sections in the zoning code impose only minimal and routine requirements on the Applicant, and they apply generally to the land uses contemplated by St. Marys zoning ordinances. The benefit of the oversight functions that they provide to the City and the public far outweighs any potential burden on the Applicant. Because this action would diminish the City s authority at the public s expense, City Council should deny the Applicant s request for exceptions to special use permit procedures. 3. Maritime Heritage District Requirements At least part of the proposed property is subject to the requirements of the St. Marys Maritime Heritage District (MHD) Ordinance However, Special Condition #4 would allow the Applicant to be exempt from all such requirements. The MHD Ordinance was enacted specifically to preserve and enhance the city s historic character, both landside and waterside, while providing opportunities for exploring the maritime heritage of the city (b). In that vein, the zone exists to allow only for the establishment, continuation and expansion of such uses and activities in ways that will maintain and enhance compatibility with surrounding neighborhoods and the Historic District. Id. The property at issue presently lies within the waterside portions of the MHD overlay. Staff Report, 6. Accordingly, the MHD ordinance imposes extra requirements on floating maritime vessels, such as barges and ships, including that such vessels shall be regulated by the City of St. Marys (e)(7). The site proposed for rezoning is the gateway to the downtown district and borders the North River, making the MHD waterside requirements especially salient. In short, exempting the property at the Applicant s behest may remove additional protections afforded to the City and the public for the maintenance of this property, solely for the Applicant s benefit. City Council should therefore deny this requested exception. * * * Thank you for your consideration of these comments. If you would like to discuss this further, we would be happy to do so. To allay any concerns about potentially inappropriate

5 Page 5 contact during the pendency of this rezoning decision, we have discussed the permissibility of such contact with the Georgia Bar. The Bar s position is that such exchange is expected and perfectly proper behavior, provided it is not undertaken during the pendency of a lawsuit. If you have any questions, please contact us at (404) , or by at bsapp@selcga.org and hbarnes@selcga.org. Sincerely, William W. Sapp Senior Attorney Helen Barnes Associate Attorney cc (via ): John Holman, City Manager Jeff Adams, Community Development Director

CITY COMMISSION BRIEFING & Planning Board Report For Meeting Scheduled for June 20, 2013 Comprehensive Plan Text Amendment Ordinance 1564

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