FBCC passes resolution to curb OHPA powers within city limits; Gass, Boner dissent

Submitted by Suanne Z. Thamm
Reporter – News Analyst
December 2, 2015 5:32 p.m.

Following lengthy public input and commission discussion, the Fernandina Beach City Commission (FBCC) during its Regular December 1, 2015 Meeting, approved on a 3-2 vote Resolution 2015-169, which supports changes to the Charter of the Ocean Highway and Port Authority (OHPA) relating to the preemption of local laws and powers of eminent domain. The item had been placed on the agenda by Commissioner Tim Poynter following a request from a citizens’ group for official city input to the Nassau Legislative Delegation, consisting of State Senator Aaron Bean and State Representative Janet Adkins.

In opposing the Resolution, Mayor Ed Boner and Commissioner Pat Gass, who rarely agree on contentious issues, agreed in this instance that such a resolution was premature, in light of the OHPA’s imminent formation of a countywide citizens committee to update the entire Charter.

During a Joint Workshop with the OHPA that immediately preceded the FBCC meeting, the city informed OHPA that it was considering this matter in advance of the overall discussion on updating the OHPA Charter, since that process has not yet begun and the matters contained in the resolution were narrow in scope, only affecting the city of Fernandina Beach. OHPA Chair Danny Fullwood said that he understood the city’s position, but would have preferred that the proposed changes be considered during the countywide charter review process. The OHPA is not expected to receive recommended Charter changes from the yet-to-be selected committee until August 2016.

City Attorney Tammi Bach provides background

Bach explained that in response to concerns raised by local citizens, the Nassau Legislative Delegation has requested input from local governments with respect to their position on revising the OHPA Charter. While many concerns have been raised over the past 18 months, the two specific concerns cited in the resolution related to the OHPA’s ability to exercise eminent domain in the city of Fernandina Beach and exempting themselves from laws and regulations regarding land use.

Bach explained differences between general laws and special laws of Florida. She indicated that she and OHPA attorney Clyde Davis do not necessarily agree on current Charter provisions under which the OHPA can preempt city laws and regulations under certain circumstances.

She stressed that the resolution under consideration would have no effect on current law. Rather if passed, it would be the city’s endorsement of citizen recommendations designed to assert the city’s authority over any potential OHPA actions proposed within city limits. Note that there are no current OHPA actions planned or underway with respect to exercising eminent domain.

Mayor Boner seemed concerned that the public understand that when the City Attorney uses the term “argue” with respect to dealing with the OHPA, that it does not mean that animosity exists between the two bodies. Rather, it means that they hold different interpretations of existing laws. He said that OHPA commissioners have countywide interests, whereas city commissioners mandate is limited to the corporate limits of the city. He told the audience, “They represent you, just as we do.”

Public input

Fourteen members of the audience spoke to the proposed resolution, nine of whom favored adoption, while four suggested deferring the issues for consideration by the future OHPA countywide committee.

Resolution supporters

Proponents, most of whom have been deeply involved with matters involving OHPA since the unveiling of the Port Master Plan 18 months ago, suggested that the resolution was a way to express community concerns over the potential for OHPA to disregard the judgment and regulations of the Fernandina Beach City Commission at will. “Not in my town,” Chuck Hall said. “We’d like to have a say so.”

Chip Ross presented a graphic showing how the Amelia riverfront looked in 1986 with “a pristine beach” before the Port of Fernandina was constructed. He cited the original agreement between the city and the port in which the port agreed to meet 50 conditions set by the city. He claimed that the OHPA today refuses to honor certain of those conditions. He said that while OHPA has after months of discussion reversed itself and now supports the formation of a committee to study its charter, “They have stacked the deck by reserving to themselves the right to decide who serves on the committee.” Ross said that the proposed resolution has no effect on outstanding OHPA bond debt. He urged that the city pass the resolution to make it “crystal clear” that the port needs to abide by city rules and regulations.

Faith Ross thanked the FBCC for honoring State Representative Janet Adkins’ request for local government input. She said, “Any future land acquisitions or condemnations by the port need to be vetted by the city not only for public safety reasons, but for financial ones.” She raised the problems of possible port construction that would exceed city height limits and disregard city setback and buffering requirements.

Phil Scanlan said that the resolution was a way for the city to demand oversight with respect to proposed OHPA plans and facilities within its jurisdiction.

Joyce Newlin presented the City Clerk with more than 500 petitions of support from local residents. With respect to the proposed countywide committee to consider OHPA Charter changes, she said, “The other people [members from Yulee and west side Nassau county communities] don’t live here; we do.”

Frank Santry, an author of the resolution, asked commissioners for support while acknowledging the difficult position of the FBCC in raising concerns about another political jurisdiction’s authority. “It’s difficult; it’s troublesome,” he said. But he went on to say that the resolution only addressed two charter items, “which are very much your business and ours in the truest sense of the word.” He agreed that OHPA does not have a history of exercising eminent domain but said that nothing prevents them from doing so, as their charter currently reads, by a simple majority vote. “The OHPA is a special purpose government entity,” he said, “for exercising influence over my [state] representatives. Their sworn obligations are to support the Port of Fernandina. They are not obligated to take into account Historic District preservation, historic business preservation, taking care of a tourist industry that last year brought in $391M compared to the port’s revenue of $930K (2014 data). All we’re asking is that a government body that does have to take those issues into consideration be involved.”

Michael Harrison spoke to control, or the lack of it, over the OHPA and over its own activities locally or at the state level. He suggested that OHPA had ceded authority to port operator Kinder Morgan in some instances. He said that based upon his experience earlier this year attempting to stop a change to the OHPA Charter that would make commissioner elections partisan, he learned that if the local delegation supports changes on matters of a local nature, the legislature would simply go along. He felt encouraged that since Adkins had solicited input from local governments on the charter changes, any input provided would stand a better chance of passage.

Michael Leary questioned why, since on many occasions the OHPA has said it has no intentions to expand, would OHPA need condemnation rights?

Jeff Kennard spoke to dispel any thought that people behind the resolution were mainly “newcomers and fear mongers” who want to change Amelia Island. He cited his family’s deep roots in Florida and 150 years in the local community. He said that members of the citizens group now known as “Stand for Amelia Island” want to protect and preserve the community, while OHPA and its port operator Kinder Morgan want to change that. “We are your friends and neighbors,” he said, citing many fields of expertise which group members have offered to help the community.

Julie Ferreira reminded commissioners that local legislators have asked for input from the city. “I don’t think anyone in this room is really concerned over what OHPA might do west of I-95. What we’re concerned about is what happens on the island, but most importantly what happens in our city.” She expressed concerns over port operator Kinder Morgan’s potential to alter the status quo since it has a major financial investment in OHPA.

Resolution opponents

Opponents to the resolution included Lynn Williams, who agreed with arguments put for the by the Rosses, but who expressed his belief that its passage “would have absolutely no effect on the legislators.” He said that its passage “would poison the well” for the ongoing possibilities of the future charter review committee. He suggested tabling the matter for a year, and perhaps taking one of the charters from another Florida port to use as an example for an updated OHPA charter. He said, “Going slower might be a more reasonable thing to do.”

Andy Curtin agreed with Williams and asked the FBCC if there was any history of the OHPA preempting local laws or imposing eminent domain. In the absence of such history, he said that city action to pass the resolution at this time is premature at best and also infringes on the authority of another elected body, the OHPA. He recommended setting aside the resolution to allow the OHPA “to proceed with its own business” in reviewing and updating its charter.

Rayonier Advanced Materials representative Russell Schweiss said that as a long time user of the port, Rayonier has no objections to updating the port charter. He said that the legislature would ask if all the stakeholders were in agreement on the requested changes. Since OHPA is not currently in agreement, he said that the likelihood of legislative action was low. However, with consensus among the stakeholders that could result from the proposed charter review committee, odds of passage would increase. He said that proposed charter revisions should be broadly based and not just come from one interest group. He suggested that the best way for the city to achieve its goal is to work with the OHPA in the charter review process. “The best change will come,” he said, “if you guys are working together.”

Nassau County Economic Development Director Laura DiBella said that she opposed a piecemeal approach to amending the OHPA Charter. She said that she would like to see all the stakeholders brought together for a comprehensive review of the charter. Such a review would reassure local and potential industries that need to see that changes would be supportive to their industries. She expressed fear that a piecemeal approach could undermine economic development efforts.

Commissioner Poynter replied, “We’re talking about the city of Fernandina Beach, following our municipal codes, and not advancing into the Historic District. If that [constitutes] tools that prevent you from attracting businesses to Nassau County, I’m sorry. Piece-mealing things together is not the best way to go, I agree.” He went on to emphasize that the current resolution has been so narrowly drawn that it includes only items that city citizens would never agree to give up to OHPA. “I represent the citizens of Fernandina Beach,” he said.

Commission discussion

During Public Input, Mayor Boner challenged Michael Harrison on Harrison’s perception of State Representative Adkins’ support for the resolution under consideration, stating that during his conversations with Adkins she raised support for other potential changes—like removing casinos and oil refineries from the list of potential OHPA activities. A confusing exchange between Boner and Harrison ensued.

Finally, Commissioner Tim Poynter sought and received recognition. Poynter said to Boner, “This has nothing to do with what Janet Adkins agreed to. This is a resolution, which is totally different. We are voting about an issue of concern to this community –not Hilliard, not Bryceville, not Callahan. During the last 18 months, I’ve attended an awful lot of meetings and heard an awful lot of stuff.”

Poynter went on to say that problems started with OHPA’s take-it-or-leave-it-approach to dealing with their new Port Master Plan. “I was at all those meetings; I heard their tone,” he said. “Where [the OHPA and the FBCC] are today … we’ve come a long way [in improving discussions].

“To say ‘we are poisoning the well’ is absurd. We are taking a stand on our community,” Poynter stressed. “We have an agreement [with OHPA] that will expire in a couple of years. I don’t know what’s going to happen then. But I do know, and I don’t care if it’s another year from now, I am never going to want this community to sit back and say ‘Go ahead and expand, if you want’, ‘Eminent domain what you want,’ and agree that [OHPA] does not need to follow city rules. If that’s poking a stick in those guys’ eyes, okay, sorry. But I can never see this community agreeing to that. What we are trying to do here – hopefully with the support of my fellow commissioners – is to tell Representative Adkins at least in the city of Fernandina Beach I can never see the community backing down from what is proposed here. … It’s not poking a stick in the eye of the port; it’s taking a stand.

“I’ve talked to people who were involved with the port from the very beginning [in 1986] and it was never, ever the intention that the port would expand its base. Ever. But agreements expire. And that’s why we should support this resolution.”

Vice Mayor Johnny Miller expanded upon Poynter’s remarks. “Anyone who thinks the port didn’t want to expand needs to go back and look at the videos from meetings over the past 18 months.” He recalled a meeting in which the two boards sat across from each other. Because the issues had become contentious, Miller said that he was expecting OHPA to show up with its hat in hand, when instead, “They pulled out a gun and aimed it right at us. They wanted to expand. They bought property, tore down houses and tried to change zoning. Go back and watch that video. That will give you some idea of what we have been reacting to. And as far as not wanting to pass this resolution because we think it will fall on deaf ears in Tallahassee, we’re not going down that road.”

Commissioner Robin Lentz expressed her support for both Poynter’s and Miller’s statements. She reflected on how the many issues had narrowed to the two under current consideration and how the relationship between the two boards—OHPA and the FBCC—has improved as reflected in the joint workshop with the OHPA that preceded the FBCC meeting. “This [resolution] is just one piece of the charter overhaul that OHPA is considering,” she said. “We still want them to put their committee together, we still want them to do all that, but this is one piece we can present to our state legislators to say this is really important to us and we’d like this taken care of as soon as possible. I want to say how I have appreciated their input and willingness to work with us [as expressed in today’s meeting].”

Poynter said, “I want the audience and the people watching at home to know that we brought this resolution up with the OHPA at our meeting this afternoon. They disagreed with us to a certain extent, which I understand. That certainly did not change my mind. They understand that there are issues. But if it wasn’t for the group of citizens that has been pushing this, there wouldn’t be a charter review committee that OHPA is now talking about. We are at this point now because a very dedicated group of citizens have opened our eyes to potential issues moving forward. I just want people to know that we are not [blindsiding] the OHPA with this resolution.”

Miller spoke next. “I want to reiterate that the earlier meeting went well, and we are not anti-OHPA.” He agreed with Lentz’s position that the city needed more representation on the OHPA Charter Review Committee. “We are moving in the right direction, and I think they are listening. But the reason they are listening is because the people sitting here in this audience have gotten us to this point.”

Commissioner Pat Gass said that she had consulted with several lawyers and, “It seems that Florida Statute 315 already covers [this resolution]. Fifteen deep-water ports in Florida all enjoy the right of eminent domain. … If we pass this, we are undermining state law, which we have taken an oath to uphold.” Gass recommended instead sending the points covered in the resolution to the OHPA Charter Review Committee with instruction to consider them as serious concerns for the city of Fernandina Beach. “Then sit back and let nature take its course,” she said. She emphasized that her comments came as a result of consulting with not just one or two lawyers, but several, expressing concern that if the city passes the resolution, it will be “thumbing its nose” at the law.

Mayor Boner, the last of the commissioners to weigh in, expressed concerns with speaking about OHPA in terms of “us and them.” “Both boards are working for the community, but OHPA’s boundaries are much larger than the city’s. I think you have to keep looking back at those commissioners who are elected to represent all of Nassau County, us as well,” Boner said. He agreed with Gass that the right way to accomplish the resolution’s goal was to work with the OHPA Charter Review Committee to avoid creating more division between the boards. “I think there is a huge misunderstanding over just what the port is,” he concluded.

Poynter moved to approve the resolution and Lentz seconded his motion. When the vote was called after an hour of discussion, Miller joined Poynter and Lentz in approving the resolution, while Gass and Boner voted against it.

This was Boner’s last commission meeting. He did not seek reelection in the November general election. Because Gass did not receive a majority of votes cast in that election, she heads to a runoff election on December 8 and faces candidate Roy G. Smith.

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.