Local opposition to Publix’s plans to build a supermarket-anchored shopping center in the southeastern corner of Orchid continued to grow last week, and one town resident raised a legal issue that could derail the project.
Not only did a neighboring homeowners association unanimously approve a resolution opposing the proposed development, but a member of the Orchid Island Golf & Beach Club’s board of governors and chairman of its long-term planning committee challenged the Town Council’s authority to grant one of the more significant building-code waivers Publix has requested.
In a Dec. 10 letter to the Orchid’s Town Council and Local Planning Agency, retired attorney Robert Hausen wrote that the Town Code prohibits the construction of buildings with flat roofs in commercially zoned areas and provides town officials with no means of overriding that restriction.
Calling it a “threshold issue,” Hausen argued the council “lacks the authority under the Town Code to grant a waiver to Publix” that would allow the flat-roof construction the supermarket company seeks.
Hausen sent his letter the same week that the Old Orchid Homeowners Association’s board of directors penned a four-page letter detailing its reasons for opposing the Publix project.
The letter from Old Orchid – the community immediately east of the seven-acre site on which Publix wants to build a 31,000-square-foot supermarket and a 6,000-square-foot retail building containing five stores – raised the same issues mentioned by other opponents of the proposed development.
Those issues include increased traffic, noise and crime; the intrusive glow from parking-lot lights; aesthetic and environmental damage; and even rat infestation.
Old Orchid, which is located outside the town limits, also questioned the need for a large supermarket when there’s a Publix only 3.8 miles away.
The letter, addressed to all the relevant town and company officials, attacked the Publix proposal, stating it “fails every required community standard” and “violates everything the town’s building code exists to protect.”
Hausen, meanwhile, made clear he was expressing his personal views – not necessarily those of the Orchid Island club’s board or planning committee.
In his letter, Hausen targeted the “very large flat roofs” he described as “defining features” of the two buildings included in Publix’s proposal.
“In essence, they are warehouse structures with minimal ornamentation intended to somewhat disguise the rather pedestrian nature of the buildings,” he wrote. “Together, the two buildings have flat roofs of approximately 35,000 square feet, equal to an area about two-thirds the size of a football field.
“Under the Town Code, the Town Council has no authority to approve such structures.”
To support his argument, Hausen attached to his letter a memorandum that cited the applicable chapters and sections of the code. Hausen’s letter particularly focused on Chapter 71, Section 11, which he claimed “specifically enumerates” the zoning restrictions the Town Council has authority to waive.
“This section does not specify the flat roof prohibition as a zoning restriction that may be waived by the Town Council,” he wrote, adding, “nor does any other section of Chapter 71.”
Therefore, Hausen argued: “The inescapable conclusion is that the Town Code explicitly prohibits flat roofs in commercial zones and no other provision of the Code gives the Town Council the authority to waive that restriction.”
Town Manager Noah Powers confirmed that Orchid officials had received Hausen’s letter and said it would be forwarded to the town’s professional planner, the Fort Lauderdale-based Mellgren Planning Group, which is reviewing the application and site plan Publix submitted in October.
“I honestly don’t know enough about this issue to comment,” Powers said last week, adding that he needed to consult with the town’s attorney. “We’ll take a look at it. We certainly want to do the right thing.”
Hausen authored his letter amid an email campaign launched recently by residents of the Seasons at Orchid, another community adjacent to the town.
A group that identified itself as the “Seasons 32963 Committee” has distributed fliers in the mailboxes of homeowners of nearby communities, including Summerplace and Oceanaire Heights, in an organized effort to stir up opposition to the Publix development.
Many Old Orchid residents, worried also about the negative impact the shopping center might have on their property values, individually began expressing their opposition shortly after Publix representatives introduced their initial plan at an Orchid Town Council meeting in April.
The Old Orchid HOA’s letter contained a list of potential traffic issues, as well as the community’s concerns about the development’s impact on the surrounding neighborhoods’ “tranquility, beauty and safety,” all of which residents claim will be “irretrievably lost.”
The letter states there are “well over 300 homes ranging in value from $400,000 to $3 million are within 2,000 feet of the Publix site boundaries” that will be affected.
“As residents and visitors travel eastward on State Road 510 over the Wabasso Causeway Bridge,” the HOA wrote, “the huge, incongruous commercial Publix complex will ruin the otherwise beautiful vista of Orchid Island’s beachside communities.”
The letter also stated that the waivers requested by Publix are “inharmonious to the character of the community and injurious to the area.”
Orchid’s LPA and Town Council both are legally required to conduct quasi-judicial hearings before voting on Publix’s proposal. Powers said he expects the LPA hearing to be held in January with the council hearing in February.
“It’s already almost Christmas, so we could get pushed back a bit,” Powers said, “but we certainly want to get this done before April, when a lot of our residents leave for the summer.”
