Across the Street: Regulatory Failure at the Local, State, and Federal Level

(ARK Newsletter Winter 2005)

The current development allowed by the City of Darien, Coastal Marshland Protection Committee, and Corp of Engineers on the Darien waterfront is a prime example of the community-wide consequences of short-term thinking. Across from ARK's office, a new development called Settler's Bluff is now under construction and consists of a restaurant, oyster bar, dock complex, paved parking lot, 42 condominium units, and a pool. When complete, this high-density development will occupy less than 3 acres of waterfront property, a large portion of which is filled marshland. There is also what has been inaccurately referred to as a "public marina" on the site, owned by the condominium owners.

There is no boat launch attached to this so-called public marina, they are 42 boat slips behind a locked gate. You can use your imagination as to what is taking place here. There are 42 condo units and the docking slips are to be leased on a first come first serve basis.

The Marshland Protection Act is very clear; if the project is not water related or dependent on waterfront access or can be satisfied by the use of an alternative nonmarshland site or by use of existing public facilities, a permit usually should not be granted pursuant to Code Section 12-5- 286. Since when are condominiums water related or water dependent?

A native McIntosh County family originally owned the site where they operated a shrimp dock and shrimp packing facility. Back in the early 90's they had the idea of putting a public marina on the site and obtained a permit to fill the marshland to accommodate the marina, dry storage and parking. Public marinas pass the public interest review test and that is how they managed to get a permit to fill the marsh and construct an extensive dock system. Time passed, the public marina was never built and the owner decided to sell out and retire.

In September 2001 the Director of Darien's newly formed Downtown Development Authority (DDA) proposed an economic development project for the site that would be initiated and stimulated by public grants but developed and controlled by private developers. This public-private partnership set forth a grand scheme to revitalize downtown Darien with a restaurant, shopping complex, additional docks, and a 42-unit private condominium complex and swimming pool. The DDA initially proposed and secured a $500,000 One Georgia Economic Development Grant for the city to purchase .8 acres of the Settlers Bluff site that would be leased to the developers for the construction of a restaurant. This grant and access to other economic development funds were presented as the incentive to get the developers to "do the deal". An Economic Incentive Grant was also secured to hire local employees at the restaurant and to renovate the docks for dock space for those visiting the restaurant by water. The normal Coastal Resources Division (CRD) public review and regulatory oversight that is required by the Coastal Marshland Protection Act for a new development in a marsh was never required or held.

ARK and others repeatedly asked CRD to follow the law and review the new project before transferring the dock permit to the new owners for a different use. Former Commissioner Lonice Barrett, CRD, and the CMPC ignored repeated correspondence and public requests for review of this project, in spite of the fact that their own attorney interpreted the law to say that if the original project had changed, a review was necessary before transferring the dock permit.

"To secure their required profit margin," the Settler's Bluff developers packed five buildings housing 42 condominiums on less than 2 acres. The developers requested and the Corp of Engineers granted a permit modification for the site to allow two of the buildings to be located directly on the site that was marsh less than 20 years before. The entire site is subject to standing water and flooding with even modest rains. Construction of the condos required adding hundreds of loads of fill dirt to the site. When the Corp granted the permit modification based on the developers argument of financial necessity, in ARK's opinion, they failed in their regulatory responsibility to the public and opened the door for a project that is ill suited to its location. The ultimate financial and environmental impact of the condo project to the Darien community, the Darien River, and adjacent landowners is still unfolding.

Pre-construction at Settler's Bluff

A new view of the marsh.

Move over shrimp boats...

The City of Darien has a height ordinance that restricts buildings to a maximum height of 35 feet. Most of Darien's buildings are 25 feet or less. As a condition of purchasing the property and going forward with the project, the developers required a height variance from the City that would accommodate highdensity development. Despite questions about the project and concerns of neighbors about how these tall buildings would affect their view, the city took quick action to allow the 45-foot height variance. City officials and the developers rejected citizen concerns and insisted the project would be something Darien could be proud of for years to come.

Three years later, five 45 feet high buildings are in various stages of construction on the Darien River. These looming box-like structures now darken and block the river view along Broad Street, the street closest to the river. Prior to the condominiums, all the residents and businesses along Broad Street had a beautiful view of the Darien Waterfront, docked shrimp boats, the wide expanse of marsh and river and spectacular sunsets. Beyond the immediate impact, the river views of other residents and pedestrians are blocked as well; where there was once an expansive view of the Darien River and marsh, now there is darkness. Crossing over the Darien River on old Highway 17, the town's picturesque landmark used to be the ruins of the historic tabby warehouses and the Strain Building, now the area is dominated by ugly condominiums. The landscape is changed forever.

To realize what this really means you need to understand one of the main reasons why people live on Georgia's coast. Many new and long time residents bought property and made their homes here simply for the view, which they consider sacred. They love to see the sun rise and set on the vast area of marsh and river.

The General Assembly recognized this when the Georgia Coastal Marshlands Protection Act was written and included restraints to protect the rights of adjoining riparian landowners. These excerpts are taken from the Marshland Protection Act:

12-5-288. Restriction on granting of permit; size restriction; activities and structures considered contrary to public interest.
(1) Filing of marshlands for residential, commercial, and industrial uses
(7) Construction of structures that constitute an obstruction of view to adjoining riparian landowners, including signs and enclosures;

The Settler's Bluff project has filled the marsh for residential development and built structures that block the view of adjoining riparian landowners. The CMPC and the CRD should enforce the law. They should review the impact of projects requesting marsh permits to evaluate not only the impact of docks or bridges in the marsh, but also the impact to upland developments. This includes the individual property rights of the people who own adjacent property and live in this area. It is the Committee's responsibility to look at upland impacts, the Act is very clear in this respect. In ARK's opinion, the Committee's failure to do its job properly with Settler's Bluff appears to violate the law and the neighbor's individual property rights.

Is our Coastal Marshland Protection Committee out of control? Are they doing their job? Aren't they supposed to be working for us to make sure "that activities and structures in the coastal marshlands are regulated so that the values and functions of the coastal marshlands are not impaired"? Does the Committee care about our natural resources and individual property rights? If you care about the long-term protection of the Georgia coast, you need to be asking these questions and getting answers.

Georgia needs to maintain strong protection for its coastal marshland. Please contact your state senator and representative today and ask them to support strong protection on issues that affect our marsh, such as, upland impact, density, and storm water run off. Ask them to oppose any efforts to weaken the CMPC or buffer laws to allow construction closer to the water.

Some coastal developers are working hard to create greater short-term profits for their developments at the expense of the publicly protected marsh ecosystem. The Coastal Marshland Protection Act exists to protect the coast for future generations, not to provide large short-term real estate profits. Your help is needed to bring reason to this discussion. It is our coast and we must all act now to protect it.