City and Marina Restaurant owner reach agreement on “Sidewalk to Nowhere”

Submitted by Suanne Z. Thamm
Reporter – News Analyst
October 22, 2014 4:34 p.m.

At its October 21, 2014 Regular Meeting, the Fernandina Beach City Commission (FBCC) approved Resolution 2014-146 in the hope of ending a long running dispute with Patricia Toundas, owner of the Marina Restaurant building, over the existence of a public right-of-way adjacent to the west side of that building.  Toundas and the City have agreed to end the dispute in the best interests of both the public and the parties.  Despite diligent efforts of all parties, no official maps have ever been found in city archives to support either position.  Discussion of the item produced some heated moments and exchanges as local attorney Clinch Kavanaugh questioned actions taken and not taken by City Attorney Tammi Bach.

Bach presented the resolution to the FBCC along with a drawing prepared at the city’s request by Manzie & Drake Land Surveying indicating where the city would place an ADA-compliant sidewalk on the property in question.  By way of background, the city provided the following summary:

In 1954, the Fernandina Beach City Commission adopted Ordinance No. 258 which vacated/closed portions of Front Street and Beech Street.  Front Street was dedicated to the City of Fernandina as right-of-way via a plat prepared by the Florida Railroad Company and accepted by the Florida Legislature in late 1858.  Section 1(a) of Ordinance No. 258 vacates/closes a portion of North Front Street running south to Centre Street “approximately 25 feet in width and approximately 1,800 in length.”  The City Commission reserved (did not vacate/close) a 10-foot wide driveway running parallel to the Marina Restaurant building.  In the best interest of the public, the City and Ms. Toundas have agreed to end the decades-long dispute by providing for a public City sidewalk to be constructed west of the Marina Restaurant within the public right-of-way and approximately 9 feet of property that will be ordered by the Court to be Ms. Toundas’ private property.  Ms. Toundas will give a quit claim deed to the City for any property she may have title to within the area where the City sidewalk is to be constructed.

Following Bach’s explanation, Mayor Ed Boner asked if the recommended settlement meant that no cars would be parking on the sidewalk.  Bach agreed, citing the addition of curbs on either side of the sidewalk.  She said that north of the sidewalk there will be an area without curbs that can be driven over so that Toundas can access the land behind her building.  She said that the railroad has been shown the plans and is also in accord with the proposal.  Bach said that her purpose was to focus on the 10-foot drive behind the building and the sidewalk.  “I was not opening up the whole ordinance [Number 258 enacted in 1954] to scrutiny by the court and determination of whether the commission could do it or not.  They did it in 1954, and they clearly in my opinion left us with an excepted portion that was supposed to stay public property…”

Bach cited complaints over safe access to the Salty Pelican from handicapped people who have had difficulties navigating the railroad tracks in lieu of a sidewalk from Centre Street.  “We have had the FRA (Federal Railway Administration) with ADA complaints …” she said.  “The [proposed] sidewalk will be 100% ADA compliant with curbs on each side.  “Ms. Toundas came out willingly and we worked this out.  According to [the surveyor] Mike Manzie, she is giving up willingly what is hers.”  Bach credited City Manager Joe Gerrity and City Streets & Parks Director Rex Lester for finding a way to make the space work for all parties:  the city, the railroad and Ms. Toundas.

The Resolution approved by the FBCC included a sketch showing the location of the agreed upon location for a sidewalk, but not before local attorney Clinch Kavanaugh raised his objections.  Kavanaugh was the only member of the public to express concerns over the proposed settlement.

Mayor Ed Boner was forced to act as peacekeeper at several points during Kavanaugh’s three-minutes of questioning and opining over the wisdom of the proposed settlement.  Commissioner Charlie Corbett demonstrated his displeasure with Kavanaugh’s position and his aggressive questioning of the City Attorney on three occasions.  The dynamics between Corbett and Kavanaugh were set in motion when Kavanaugh delayed his remarks until City Attorney Bach could resume her seat following her presentation.  By remaining silent, Corbett said, without being recognized, that 30 seconds of Kavanaugh’s time had already passed.

Kavanaugh’s concerns centered on the absence of the color-coded map that was to be attached to Ordinance 258.  “You said there’s no map.  Is that right?” he asked the City Attorney.  She replied, “I said, we’ve never found a map.”

Kavanaugh continued.  “You made a production request on the railroad … Are you telling me that Seaboard Coastline, who drafted the ordinance couldn’t find a copy of that ordinance?”  Bach replied that she had not gotten any records from the railroad.

Kavanaugh became increasingly aggressive in questioning Bach.

“I know for a fact that that map was never even attached to the original ordinance when it was published in the News Leader in 1952.  That ordinance is void ab initio [from the beginning].  The map is the Rosetta stone … I can guarantee that the railroad has a copy.”

Bach replied, “The railroad would charge the city for research and copies, and I didn’t want the city to have to pay for this.  I asked you why don’t you intervene in this suit.”

As Kavanaugh’s questioning continued, Corbett intervened.  “Whoa, whoa, whoa.  That’s enough from you, Mr. Kavanaugh.”  Kavanaugh snapped back, “You don’t have the floor; you’re not the mayor.”  At that point Mayor Boner banged the gavel and turned to the commissioners.  “If everyone will pause for just a minute.  If everyone will wait until [Kavanaugh] is finished,” he pleaded.  Turning to Kavanaugh, he admonished him by saying, “Please don’t engage other people.”

Kavanaugh replied, “I’m just inquiring.  … You just decided not to go get [the map], Tammi.  That explains the whole thing.  I guarantee that the railroad has it, just like I guarantee the sun comes up in the morning.  All you have to do is pay for it. Like in any lawsuit.   Frankly, you are just giving away city right-of-way like you give away cash to Lynn Williams.”

Bach said that she assumed “the map would show a 10-foot driveway, which we have here, located where our expert witness says it is located.”

Kavanaugh continued talking as he resumed his seat and Corbett shouted, “Hey, that’s enough out of you.”  Once again the Mayor restored order.

John Cascone, an attorney representing Patricia Toundas, was recognized to speak.  He informed the commission that along with fellow attorney Dan Brim, he had met with Attorney Bach, Manager Gerrity and Maintenance Director Rex Lester several times.  Although not involved in the decision to bring in Manzie & Drake Surveyors, he believed “their determinations are what we believe to be in support of events that happened a long time ago.”  He also cited a previously delivered legal opinion from former city attorney Clyde Davis.  “Ms. Toundas made the offer to surrender a portion of her property because it was better for the citizens of the city to have that.  She was willing to give up her portion in spite of everything else that has been said and done.  Tammi [Bach], Joe [Gerrity] and Rex [Lester] have gone beyond the pale for y’all.  We need to put this to rest and get it over with.  There is no guarantee that Ms. Toundas’ vacant property will remain a driveway.  She may pursue construction options on space that she will have title to… She has given up her interest to the betterment of the city, so you all need to approve this.”

Commissioner Pat Gass called Cascone back to the podium.  “Please tell Patricia [Toundas] we said thank you.”  Vice Mayor Sarah Pelican agreed.

City Attorney Bach advised commissioners that there was no change in the ordinance for owners north or south of this particular property.  She also advised that she and Toundas’ attorneys would be putting together more detailed documents with approval of the current resolution.  Pelican moved passage of the resolution, which Corbett seconded.  After the unanimous vote City Manager Gerrity thanked all the parties.  “We reached a good ending.  Not everybody gets everything they want.  Everyone has worked very hard on this.  We are trying to come up with something that is fair to everyone.”

The “Sidewalk to Nowhere” issue surfaced in January 2012, when the owners of the Salty Pelican Restaurant, north of the Marina Restaurant along Front Street, were required to build a $3,500 sidewalk in the city right-of-way west of their building to allow handicapped access from Centre Street.  Yet they found that the path from their restaurant to Centre Street was regularly blocked by cars parked adjacent to the west side of the Marina Restaurant building.  Patricia Toundas, owner of the Marina Restaurant, claimed that the land in question was her property, not the city’s.  Without the through passage from Centre Street to the Salty Pelican, patrons resorted to crossing the railroad tracks, which resulted in problems such as falls and wheelchair spills.  The dispute has been the source of multiple complaints to the city and federal authorities over handicapped access.

Editor’s Note: Suanne Z. Thamm is a native of Chautauqua County, NY, who moved to Fernandina Beach from Alexandria,VA, in 1994. As a long time city resident and city watcher, she provides interesting insight into the many issues that impact our city. We are grateful for Suanne’s many contributions to the Fernandina Observer.