HEX hearing examiner rules in favor of Gilchrist property owner – matter to be returned to BGHPB hands
A decision has been made in the case of the property owner at 161 Gilchrist Avenue vs. Lee County, heard on September 12 of this year by Chief Hearing Examiner Donna Marie Collins.
The appeal was made by the property owner and their representatives, based on their belief that in denying a special Certificate of Appropriateness to permit construction of a home (161 Gilchrist Avenue) and a garage and maintenance building on the adjoining lot (181 Gilchrist Avenue), the Boca Grande Historic Preservation Board did not apply the correct law, they did not afford the property owner due process and did not use the proper evidence to back up their denial.
Representing the County was Amanda Swindle, Esq.; representing the property owner at 161 Gilchrist Avenue were Jenna Persons-Mulicka, Esq. and Megan Strayhorn, Esq.
It was at the BGHPB’s April meeting when this item was on the agenda. Prior to any engagement, conversation or examination of the actual proposed structures on the two properties, which is all the COA was for, Board members asked about a feature on one of the properties called
the Whispering Bench.
It was an acoustical amusement that Louise du Pont Crowninshield had built based on others she had encountered in the Northeast. There was supposition that the property owner was going to tear the bench down when the proposed property was built.
Project Manager Mary O’Bannon, said at the April meeting that the bench was going to be moved to a public place by a professional, nationally-known company that moved historic structures from one place to another.
Hours of discussion ensued, with several witnesses giving testimony that the bench needed to stay where it was, at the property on Gilchrist Avenue. Lee County Planner Peter Blackwell explained that the property owner was allowed to do whatever he liked with the bench, as it was not listed on any record as a contributing or historic marker or structure. Swindle said the same.
After a five-hour meeting (most of which was dedicated to this proposed Certificate of Appropriateness) and with several architects speaking on behalf of the proposed home, it’s footprint and scale and other facts, the Board denied the COA based on the fact they felt it was “too big” and did not fit the scope of the neighborhood.
On May 5, the property owner’s representatives filed their appeal with the Lee County Hearing Examiner. The hearing examiner accepted the appeal on July 12.
At the September hearing, Strayhorn argued for the property owner, stating that “the board erred in basing the denial on the bench, because the bench was not part of the application to begin with.” She said that Swindle herself told the board in that meeting that there was no special significance to the bench.
The second part of Strayhorn’s argument against the Historic Board’s ruling was that the Board was comparing the mass and scale of the project, as well as the lot coverage, to other homes on single lots in the surrounding area. In fact, Strayhorn said, there are several homes in the surrounding area that are consistent in mass and scale with the proposed 161/181 Gilchrist property, and if you were looking at the project’s scope on two lots instead of one, the lot coverage was only 27 percent.
In essence, Strayhorn’s argument was that the Whispering Bench situation had completely eclipsed all discussion of the actual issue at hand, and that the Board was looking at the mass, scale and lot coverage of the proposed project as if it were on one lot, not two.
In her argument, Swindle did mention that while the property owner was treating the two lots as one, they were technically two strap numbers. However, in Collins’ memorandum it states, “In 2017, Lee County issued a zoning verification letter confirming 161 and 181 Gilchrist Ave may be treated as unified property.”
At the September HEX meeting, Collins said it might take up to 120 days to make her decision. Ultimately, the decision was made in 34 days.
In the memorandum from the Office of the Lee County Hearing Examiner issued October 16, Collins said she ruled that the Boca Grande Historic Preservation Board’s denial was not “supported by substantial competent evidence.”
She then defined her decision, beginning with the fact that the Whispering Bench should have had no bearing on the COA, as county records contain no evidence that any process was initiated to designate it as an historic resource.
Collins also cited the fact that county staff had recommended approval of the project based on facts, such as the proposed structure(s) satisfying the district’s height, setback, lot coverage and architectural design guidelines. Their recommendation also stated that detailed square footage comparisons, renderings and testimony by the property owner’s architects explained the property owner had chosen “features employed to minimize mass and scale.”
“The HPB failed to apply the correct law in denying the application, because the decision was not based on substantial competent evidence,” Collins said. “HPB discussion/deliberation is not evidence. General statements by board members that the proposed structure is ‘too large’ or a ‘monster,’ are not legally sufficient grounds to base a denial.”
She added, “The Board’s departure from essential requirements of law mandates remand. The only substantive competent evidence in the record supports a finding the proposed structure meets adopted guidelines. In the absence of substantial competent evidence supporting denial of the special COA, approval is the sole legally supportable outcome.
“The LDC authorizes remand for further proceedings consistent with Hearing Examiner findings and conclusions of law. Accordingly, the Hearing Examiner remands the case to the Boca Grande HPB for further action consistent with this decision.”
It’s unknown at this time when the Gilchrist Avenue property will be back on the BGHPB agenda. Stay tuned.
