By Adam Kaufman
June 14, 2020
At one level, the quarrel between Raydient (Rayonier, Inc.’s development subsidiary) and Nassau County is solely about which entity has the responsibility to fund the future construction and maintenance of parks and recreational facilities at the development at Wildlight, located in what is now the East Nassau Community Planning Area (ENCPA)
Who bears that responsibility pursuant to Florida statute and law?
Last week the Circuit Court of the Fourth Judicial District provided an answer. Pursuant to its Comprehensive Plan, Nassau County is obligated to finance, construct, and maintain “community and regional parks.” The Court’s ruling does not fully resolve the dispute.
The Wildlight narrative is acrimonious, multilayered and tortuous. It is replete with subplots and backstories. Representatives of the parties have suggested that the other party has not been truthful. If an observer of the controversy viewed the Circuit Court’s decision as this season’s final episode of a television drama, it would be a “cliffhanger.”
There are unresolved issues and unanswered questions.
In 2011, Nassau County approved creation of the ENCPA on 24,000 acres of land owned by Raydient. During the approval process Raydient paid impact fees, and initially agreed to mitigate the impact of the Wildlight development by donating 700 acres of land for use as recreational parks. Subsequently, Raydient committed to donating 12,000 acres to establish a “Conservation Habitat Network” consisting of protected wetlands and wildlife habitat.
In 2015, Raydient and Nassau County agreed to create a “stewardship district,” a limited form of government over the area that can create, finance and maintain public infrastructure.
Also in 2015, Mike Mullin returned to Nassau County in the position of County Attorney. Mullin worked as Rayonier’s legal representative through the Rogers Towers law firm from 2007 -2015, where, it is alleged, he served as lead counsel in Rayonier’s efforts to develop the 24,000 acres in the ENCPA. Mullin, says Rayonier, was retained to represent it in connection with all aspects of the County approval and regulatory process relating to the ENCPA. Rayonier would later file a complaint with the Florida Bar alleging that Mullin shared proprietary information that would adversely impact Rayonier and the ENCPA.
In 2016, site preparation began for Wildlight. Also in 2016, Raydient submitted an application for a second phase of the project.
During the approval process, dispute arose between the parties over the planning, building and funding of “community and regional parks.” It was then that the County sought to have Raydient and/or the “stewardship district” finance construction of “community and regional parks” in the ENCPA.
A “Community Park” as defined in the Nassau County 2030 Comprehensive Plan, is a park usually a minimum of 10 acres designed to serve the recreational needs of several communities in the unincorporated areas of the County in close proximity to the park. A “Regional Park” is defined as water-based recreational sites or a large resource based park of at least 30 acres or more intended for residents of the entire unincorporated area as well as municipalities.
Notwithstanding the disagreement with regard to parks, in 2017, Raydient and the County lobbied the Florida Legislature to create the East Nassau Stewardship District.
The legislation creating the Stewardship District and its governing Board states, in part, “[t]he district shall have, and the board may exercise, the following special powers….” The list of “special powers” includes the power to provide for public parks and recreational facilities.
After creation of the Stewardship District, Mullin and the County Commission maintained that the legislation transferred to Raydient and the District the obligation to create and maintain parks and recreation facilities.
The dispute continued, Raydient asserting that it was not obligated to provide park and recreational facilities and that it was not a mandatory obligation for the Stewardship District to finance and construct those facilities.
In February 2018, the five County Commissioners along with Mullin and then County Manager Shanea Jones and others traveled to Tallahassee. Raydient alleges that lobbying trip was an attempt to defeat a proposed amendment to a statute which the County believed would “benefit” Raydient. Raydient asserts that while in Tallahassee “the County Commissioners met together outside of the Sunshine and discussed how they could exact revenge” upon Raydient.
In August 2018, Mullin also assumed the duties of County Manager after Jones resigned. Mullin was appointed on a permanent basis in January 2019 and continued as County Attorney.
In October 2018, Nassau County passed an ordinance to create a Municipal Service Taxing Unit (MSTU) creating a mechanism to collect taxes from property owners within the ENCPA to provide parks and recreation facilities.
At that meeting, Rayonier representative Mike Bell spoke. Bell stated, in part: “As owner of the vast majority of the ENCPA land, Raydient has repeatedly stated that, as a condition to residential development, it is obligated to donate land for recreation purposes and in turn builders in the project will pay the required impact fees. Raydient has never previously agreed to fund the entire costs to construct and maintain the recreation facilities or the entire costs associated with any public facilities within the ENCPA. The county’s statements to the contrary are simply untrue and unsupported.”
Bell then asserted that the County’s true intention in adopting the MSTU was to impose “a burden upon Raydient” and that the Board of County Commissioners (BOCC) “now seeks to have Raydient … act as a bailout for the County’s fiscal mismanagement, and to have Raydient serve as a cure-all for the County’s budgetary woes related to recreation facilities.”
After the MSTU was adopted, BOCC Chair Pat Edwards replied to a Bell statement that Edwards refused to meet with Raydient’s President : “From my standpoint my partnership with Raydient is over with. What the BOCC does is what the BOCC does. What Mr. Bell just said was patently a lie.”
In November 2018, Raydient filed its lawsuit against Nassau County alleging that the County is attempting to make Raydient pay for park construction in contravention of the agreements with regard to developing Wildlight. It is this litigation that was ruled upon, in part, by the Circuit Court. After the filing of the litigation Raydient engaged in discovery, subpoenaed documents and deposed witnesses.
In December 2018, Nassau County Office of Management and Budget Director Justin Stankiewicz was fired by Mullin. It was alleged by Mullin that the firing resulted from $1000 in County funds that went missing. Stankiewicz maintains that he was terminated because he refused to delete text messages related to the dispute between Raydient and the County. The Sheriff’s office investigated and no charges were brought against Stankiewicz.
In April 2019, the Florida Bar dismissed Rayonier’s complaint against Mullin, but notified him that: “Your actions were very close to the edge of violating the Rules of Professional Conduct and justifiably raised the specter of impropriety.” The Grievance Committee of the Bar also stated “the legality of your subsequent representation of the county in a matter related to your representation of your previous client is more properly to be decided by a trial court…”
In September 2019, Rayonier filed an amended complaint in its lawsuit against Mullin for alleged breach of his fiduciary duty to the company.
CIRCUIT COURT DECISION
Judge James H. Daniel of the Circuit Court granted Raydient’s motion for partial summary judgment in the proceeding against Nassau County. The underlying facts related to that portion of the lawsuit were not in dispute and the issue that was presented was strictly one of statutory interpretation.
In making his ruling, Judge Daniel engaged in some 20 pages of statutory analysis. The Judge underscored that the Act that established the East Nassau Stewardship District providing that the District “may” exercise its special powers to finance, construct and maintain public parks and recreational facilities accorded the District discretionary power. Judge Daniel concluded that Legislature did not intend for the Stewardship District to supersede the County’s comprehensive planning obligations.
Judge Daniel determined that when interpreted together with related laws existing at the time of its enactment that the State Legislature intended the Stewardship District Act “to grant the stewardship district discretionary power to provide parks and recreational facilities within its geographical boundaries, but not relieve Nassau County of its obligation to meet basic levels of service in this area under the ROS (Recreation and Open Space) element of its own Comprehensive plan.”
Judge Daniel ruled that Nassau County’s obligation to meet levels of service specified in the ROS element extends only to “community and regional park facilities” as defined in the Comprehensive Plan.
Daniel’s decision and order specifically provides that nothing contained in the ruling shall impact any issues surrounding the challenge to the validity of the ENCPA Recreational Municipal Services Taxing Unit and the scope of its powers and authority that is also part of the Complaint filed by Raydient against Nassau County.
Will the Municipal Services Taxing Unit survive judicial review or will it be found to be a canard, a ploy and an act of retaliation against Raydient?
Nothing in the Circuit Court ruling requires Nassau County to actually provide or fund improved park and recreational space. Currently, the County provides only 2 acres of park and recreational space per 1000 residents. The County has contracted with David Barth and Associates to assist in the planning and design of its Recreational Master Plan. Nassau County’s population is estimated to reach 147,000 in 2045. There is an expressed goal of providing 14 acres of recreational space for every 1000 residents.
Will the County raise and/or allocate sufficient funds for parks and recreation?
Pursuant to the Circuit Court ruling, Nassau County is not responsible for funding “neighborhood parks.” “Neighborhood Parks” are less than 10 acres in size that may include equipment like sandboxes and playground equipment and “used by residents of one or more nearby neighborhoods, typically within a half-mile radius of the park.”
Raydient and the Stewardship District may fund “enhancements” at community and regional park facilities but the standard level of service is the County’s responsibility. Former County Manager Shanea Jones (now Shanea Jones Stankiewicz) in her deposition stated she expressed that opinion to Mullin and County Commissioners individually.
Judge Daniel noted that the statute permitting creation the ENCPA and Nassau County’s Comprehensive plan allows for the County to contract with third parties to discharge the County’s comprehensive planning obligations, “but Raydient and the stewardship district, to date, have not executed any such contract and are not required to under the Act.” Will the parties mutually agree to resolve the dispute?
Does Nassau County more often honor in the breach Florida’s Sunshine and Public Records Laws than observe them?
As former County Manager Jones has testified, during her deposition, and as confirmed by Commissioner Justin Taylor, is it true that a number of County Commissioners and Mullin met after Commission meetings on a regular basis in the home of a Commissioner for food and drinks to discuss, among other things, how to handle the Raydient and Wildlight dispute.
Did Mullin, County Commissioners and others meet in Tallahassee, on a lobbying trip, in violation of the Sunshine Law?
Was Justin Stankiewicz the County’s Management and Budget director fired by Mullin, as alleged, for refusing to delete group text messages requested by Rayonier?
Do the documents and text messages discovered through subpoenas and related deposition testimony establish a pattern of conduct that transcends the Wildlight dispute?
What does it mean practically and politically, for a County Attorney’s “actions” to have been found “very close to the edge of violating the Rules of Professional Conduct and justifiably [raising] the specter of impropriety.” Rayonier still alleges that Mullin breached his fiduciary duty to Rayonier.
Is Jones, in her deposition testimony, correct in alleging that Mullin was not always “honest” with the BOCC. Was Mullin fully forthcoming in those discussions?
What will be the impact of the elections for County Commission on the on-going litigation and the relationship with Raydient/Rayonier?
Taco Pope, currently Assistant County Manager, is set to assume the position of County Manager this August. Mullin is to remain County Attorney. What will be the impact of that change of leadership?
It should be noted that staff of the Observer attempted to contact representatives of both Nassau County and Raydient/Rayonier. Neither the County nor Raydient/Rayonier would provide any official comment with regard to the Circuit Court decision or the status of the dispute and related litigation.