Lee County's thoughts on Gilchrist Avenue parking have been recently clarified in a letter to Mary Gibbs, Lee County's director of community development, from Assistant County Attorney John Fredyma.
Dated September 5, the letter specifically addresses the designation of Gilchrist Avenue as a historic resource. It is presented in a question-and-answer format.
Question: May the Boca Grande Historic Preservation Board designate Gilchrist Avenue on Gasparilla Island as a Historic Resource, pursuant to Lee County Land Development Code Chapter 22?
Short answer: No. The BGHPB does not have the requisite legal authority under LDC Chapter 22 to designate Gilchrist Avenue as a Historic Resource.
Background: Earlier this year an item was placed on the agenda for the BGHPB to discuss, and ostensibly begin, the designation of Gilchrist Avenue, a publically maintained street on Gasparilla Island, as a historic resource pursuant to LDC Chapter 22.
Legal basis for answer: LDC22-201 allows the designation process to begin with either a request from a property owner to the respective historic preservation board, or upon motion of either the historic preservation board or BGHPB to county staff to prepare a designation report. However, the plain reading of the provisions found in LDC Chapter 22 do not support the authority of the BGHPB to designate a public roadway as a "historic resource." This term is presently defined in LDC 22-3, with a definition as follows ... "any prehistoric or historic district, site, building, structure, object or other real or personal property of historical, architectural or archaeological value. Historic resources may include but are not limited to monuments, memorials, Indian habitations, ceremonial sites, abandoned settlements, sunken or abandoned ships, engineering works or other objects with intrinsic historical or archaeological value, or any part thereof, relating to the history, government or culture of the county, the state or the United States."
While Gilchrist Avenue is located within the Boca Grande Historic District, the type of property for which a designation report may be prepared does not include the use of the words "street," "road," "roadway" or a similar term. LCD (chapter symbol)22-202, Designation report, only references "buildings, structures or sites" as the types of property that may be designated.
Over the years, the regulation coming closest to creating or establishing a "historic designation" of a (public) street or road is found in the Board of County Commissioner's 1978 adoption of LDC (chapter symbol) 34-2271, Designation as a historic and scenic route. This section in LDC chapter 34 identified a limited segment of McGregor boulevard as follows:
"McGregor Boulevard (State Road 876) extending from its intersection with U.S. 41 (State Road 45) south to its intersection with College Parkway is hereby designated as a County historic and scenic boulevard."
LDC then set forth and imposed limitation on certain activities along this segment of McGregor Boulevard, but those limitations were primarily with respect to activities occurring outside of the roadway. Additionally, the provisions in this portion of LDC Chapter 34 preserved the County's right to remain responsible for determining and performing, without limitation, those matters related to the safety and operation of the roadway. This LDC section did not compromise the ultimate responsibility or ability of the County to make and implement any decision for the public's health or safety. LDC (chapter symbol) 34-2272 provided:
"As to McGregor Boulevard, as defined and designated in this subdivision as a County historic and scenic boulevard, the following uses or activities are prohibited:
Any work that is necessary for the public health or safety, as determined by the agency having jurisdiction over the portion of the road involved, is permissible."
Additionally, the designation of Gilchrist Avenue as a Historic Resource under the current provisions of LDC Chapter 22 would be inconsistent with Florida Statutes Chapter 336 with respect to the responsibility for the operation and maintenance of a County road. In particular, (chapter symbol)336.02(1)(a), FS, provides as follows:
"The commissioners are invested with the general superintendence and control of the county roads and structures within their respective counties, and they may establish new roads, change and discontinue old roads, and keep the roads in good repair in the manner herein provided. They are responsible for establishing the width and grade of such roads and structures in their respective counties." (Emphasis added.)
Also applicable are the requirements found in 336.045, FS, for road design, construction and maintenance of any roads that is part of the County's road system. The statute places the responsibility for the public's (vehicular and pedestrian safety on County streets or roads in the hands of qualified professionals employed by or otherwise directly responsible to the County's Department of Transportation. This statute in pertinent part, provides as follows:
"All design and construction plans for projects that are to become part of the county road system,and are required to conform with the design and construction standards established pursuant to subsection (1) must be certified to be in substantial conformance with the standards established pursuant to subsection (1) that are then in effect by a professional engineer who is registered in this state."
The resulting designation as a historic resource under LCD Chapter 22 creates an inappropriate restriction on the county's ability to remain unfettered in its ability to maintain and operate a public road in a manner that advances public safety for both vehicles and pedestrians. Such a designation would be contrary to the provisions contained in Florida Statues Chapter 336 and would impermissibly compromise the board of county commissioner's power and authority in this regard.
Allowing Gilchrist Avenue to be designated as a historic resource under the current provisions of LDC Chapter 22 would be an inappropriate delegation of that authority.
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