Judge to decide future of old Kmart property in Neptune Beach

No ruling made after property owner, city present their arguments in court

JACKSONVILLE, Fla. – A judge will decide the future development of the old Kmart property in Neptune Beach after hearing arguments from the property owner and the city in court Tuesday.

The property owner of the old Kmart site at Atlantic Boulevard and Third Street filed a lawsuit against the city in September after the city shut down the property owner's plan to build apartments and a hotel. The suit claims the property owner was denied due process. 

Tuesday was the first time both sides went face to face in Duval County court since the lawsuit was filed. Each side had 20 minutes to present arguments. At the end of the hearing, Senior Judge Robert Foster did not make a ruling from the bench. Instead, he told both sides he would do his best to get back to them as soon as he can. 

Dozens of Neptune Beach residents packed the courtroom, some coming by bus, to hear arguments about the proposed plan that includes 175 apartments, a 74-room hotel and 107,000 square feet of commercial space.

"I think it is impossible to find that a much less intense use, which uses less water and sewer, has one-third of the traffic impacts, has an adverse effect on the public interest," said attorney Paul Harden, who represents the property owner.

Former Jacksonville Mayor John Delaney was also on the property owner's team.   

On the other side, attorney Clifford Shepard argued on behalf of the city of Neptune Beach. 

"I don’t disagree with anything he said. The calculations are correct," Shepard said. "But what he didn’t say is of right apartments and that is important because that is character of the area. There are no apartments. There is only one in all of Neptune Beach. That is the biggest point of all of it."

Many residents have been pushing against the residential part of the development for several months, with their biggest concern being a sudden spike in population and traffic. 

"It’s a very neighborly feel in Neptune Beach. You walked on the streets, people know each other. They say hello. It’s very cozy. It’s very eclectic," said Mary Frosio, who lives in Neptune Beach. "It’s very small town and we want to keep it that way."

The developer’s request for a zoning exception was first denied by the Community Development Board, and then by the City Council. The Neptune Beach City Council’s consideration of that request was under what’s called quasi-judicial rules, which sets some legal standards by which the council must act. The developer says those rules were violated, and it was denied due process. The developer says City Council members met repeatedly with opponents of the project, and when it came time to vote, they had pre-judged the request and rejected it because of pressure from opponents. The lawsuit seeks to strike down the vote that denied the exception.

COURT DOCUMENT: Neptune Beach Kmart site development lawsuit

The locals who are against this development were hoping for a dismissal from the judge Tuesday, but overall, they were happy with the arguments and how they were presented from the city’s side.

Now, both sides will be waiting to hear back from the judge. There's no word on how soon that could be.

In the meantime, developers have submitted a new plan that does not include any apartments. Instead, it proposes a mixed-use space with shops, restaurants and a boutique hotel room. Local who oppose the other plans say they are fine with commercial development.

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