1600 SELVA MARINA DR Memo from city attorney re height limits of non-habitable structure on golf courseMEMO
To: Joe Gerrity, City Manager
From: Jason Gabriel, City Attorney
Date: May 1, 2023
Regarding: Height limitations of non -habitable structure within the Atlantic Beach Country
Club Planned Development (PUD)/Special Planned Area (SPA)
I. Background.
The City of Atlantic Beach (COAB) has been approached by the Atlantic Beach Country Club
(ABCC) about placing a 35 foot high net on its property located at 0 Maritime Oaks Drive, 1600,
1660 Selva Marina Drive, Atlantic Beach, Florida 32233 (ABCC Property) to protect the
neighboring properties adjacent to its driving range located at 1321, 1325, 1329, 1333, and 1337
Estrela Lane, Atlantic Beach, Florida 32233, respectively from errant golf balls. COAB approved
the PUD/SPA on July 8, 2013 via Ordinance 90-13-216 (Application No. REZ-13-00100057)
which governs the development standards of the ABCC Property. Section III(C) of the Written
Narrative of the Planned Development cites "none" for maximum heights of structures on the Golf
Course. Section 59 of the COAB Charter (as well as Sections 24-81 and 24-156 Ordinance Code)
contains a thirty-five (35) foot height limit for any buildings within the City. ABCC desires to
place the 35 foot high net on an existing man-made berm which is approximately eight (8) feet in
height.
II. Question Asked.
What height limit applies to golf ball net structures within the PUD / SPA, and in particular, within
the areas of the ABCC Property designated as Golf Course, and how is height measured therein?
III. Short Answer.
When the rules provide for two (2) seemingly different sets of regulations, statutory construction
dictates that the two (2) sets be read in harmony with one another if they can. In this pursuit courts
will follow the principle that a rule be read as a harmonious whole whenever reasonable, with
separate parts being interpreted within their broader statutory context. Therefore in applying that
concept here, the rules of the PUD / SPA must be read in harmony with the COAB Charter and
Ordinance Code and as such the City's thirty-five (35) foot height restriction would apply to any
structures on the ABCC Property, measured from the highest established grade on the Golf Course
(within the vicinity of the proposed structure) as the beginning point of measurement.
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IV. Discussion.
Section 24-17, Ordinance Code defines a "Building" as a structure designed or built for
support, enclosure, shelter or protection of persons, animals or property of any kind. Building shall
include any structure constructed or used for a residence, business, industry or other private or
public purpose, including buildings that are accessory to such uses, provided such buildings are in
compliance with the Florida Building Code. "Building" or "structure" includes parts thereof and
these terms may be used interchangeably.
Section 24-17, Ordinance Code further defines "Height" as the vertical distance from the
applicable beginning point of measurement to the highest point of a building's roof structure or
parapet, and any attachment thereto, exclusive of chimneys.
Section 24-81, Ordinance Code contains the methods by which the City measures height. In
particular, Subsection (m) sets forth the calculated average grade and Subsection (n) sets forth how
to calculate the height of buildings.
Subsection (n) essentially lays out four (4) different ways to calculate the height of a building,
depending on circumstances which range from parcels that are within a flood hazard area, parcels
not in a flood zone that have a topographic variation of less than two (2) feet, parcels regardless of
flood zone with topographic variation of more than two (2) feet and single story construction.
Because: (a) the subject property where the golf ball net structure is intended to be installed
is a golf course with, by definition, varying degrees of undulating topography and other non-
standard grading, and (b) the PUD / SPA expressly states that it contains no height restriction for
structures on the course, in order to apply the principle that a rule be read as a harmonious whole
whenever reasonable, with separate parts being interpreted within their broader statutory context,
to apply the COAB thirty-five (35) foot height limit to the ABCC Property it should be measured
by virtue of the most charitable method available in City Code which would dictate that it would
apply to any structures on the Golf Course within the ABCC Property, measured from the highest
established grade on the Golf Course (within the vicinity of the proposed structure) as the
beginning point of measurement.
V. Conclusion.
I trust that this opinion provides the guidance you seek. Please note that the analysis herein is
specific to the ABCC PUD/SPA (and more particularly the Golf Course within the ABCC
Property) due to the unique regulations, annexation history and governing documents related to it.
Accordingly, the analysis contained in this memo does not apply to any other circumstances within
the ABCC PUD/SPA or within the City at large, as each case must be reviewed on its own unique
set of facts and application of law. Of course I am available to discuss this with you at your
convenience.
JRG
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