Submitted by Suanne Z. Thamm
Reporter – News Analyst
July 7, 2021
Not on the Fernandina Beach City Commission (FBCC) agenda for July 6, 2021, but high on the list of concerns for the City and patrons of Brett’s Waterway Cafe, was the future of the structure and its safety in light of a recent study on the building’s failing underpinnings.
City Manager Dale Martin, City Engineer Charlie George and City Attorney Tammi Bach fielded questions from Commissioners on the recent engineering report from Passero Associates and subsequent memorandum from the City Engineer on the options to correct deficiencies.
The situation is under review currently by the lease holder, Centre Street Restaurant Group (CSRG), Inc., located in Jacksonville Beach. While commonly known as “Brett’s”, the popular restaurant is the building’s tenant, not the lease holder.
The structure, located at 1 Front Street in the center of the City Marina, has been declared unsafe by the City’s Building Official and the City Engineer, pursuant to Chapter 22, section 26 of the City of Fernandina Beach Code of Ordinances.
In a letter dated July 2, 2021, City Engineer George notified the lease holder of the City’s intent to condemn the unsafe building unless work to repair the situation is not commenced within 60 days. Otherwise, the structure must be vacated on or before September 2, 2021.
City Manager Martin explained that Passero had been commissioned to undertake the study as part of the City’s waterfront resiliency project. He reported that City Engineer George had issued his ruling following his personal, onsite inspection and reading the Passero report. Martin said that City officials met earlier in the day with the lease holder and his associates, who “are going to develop a plan of action.” The CSRG lease, which was entered into with the City in 1997, runs until December 1, 2025.
Article 15, Section 1(b) of the lease states among its operational requirements:
“To keep and maintain the buildings, piers, pier foundations, docks and structures located on the Lease Parcel clean, orderly, and in a good state of repair and free and clear of any obstruction, rubbish or litter, in accordance with Florida State Sanitation Laws and the laws, ordinances, rules, regulations or policies of any local, state or federal governmental body and in a structurally sound condition.”
City Engineer George said that he had inspected the structure a week ago and that his conclusions basically confirmed those in the Passero report: significant deterioration of the concrete pile caps, severe deterioration of deck beams. He said that his inspection, in keeping with other inspections performed over 20 years, showed continuing deterioration, significant deterioration of structural reinforcing, spalling and cracking of concrete that jeopardizes the structural capacity of the various elements.
George said, “A lot of the past reports said that the situation was repairable. But the problem becomes the logistics of doing the repairs, the methodology. The State Building Code requires that with respect to any substantial improvements of the structure, if repairs equal more than 30 percent of the value of the structure, then all current elements of the Code must be met. That means flood plain, hurricane, etc. It would require tearing down the entire structure and building back new. The 30 percent value would be $111,000. Any repairs at any level would exceed that amount.”
Mayor Mike Lednovich asked, “Is the building currently safe for people to be on that structure?”
George replied, “No, in my opinion.” He went on to answer other technical questions.
Lednovich then asked if Brett’s Waterway Cafe should continue to operate.
George replied, “No one can predict whether it’s an imminent failure or not. It becomes an experienced engineer’s opinion whether it’s imminently failing. In my case, I have a public duty to protect the safety and welfare of the public. In my mind, it’s not safe.”
City Attorney Tammi Bach said it is her understanding that the restaurant will continue to operate unless the City tells them otherwise. She launched into an explanation of the City’s role under the Unsafe Building Abatement Code of the Florida Building Code (1985). Under that code, the standard for whether or not you issue a notice to vacate, the engineers must find that there is an immediate threat to life and safety. “That has not been found by any of the engineers,” Bach said. “The alternative is that we provide 60 day notice for them to vacate or repair the issues.”
Kreger asked, “In 60 days they can’t possibly make these repairs. So what will happen?”
Bach said, “At that point you can tell them that they cannot be in that building. And you cannot fix the problems without exceeding the 30 percent value threshold, meaning you would have to tear the building down and rebuild it.”
George explained the details of the work that would need to be done to effect repairs, noting the complexity of having to deal with the tides in working under the structure. “Is it possible? For a bunch of people who can get into such a small space to do it. But from a feasibility standpoint, it still wouldn’t meet the criteria of 30 percent. It’s a difficult standard for them to meet.”
Lednovich saiid his concern is that there are no signs indicating that the building is unsafe. Bach replied that under the code, the City cannot do that at this stage. “Otherwise,” she said, “I would have done that Friday. It’s either allowing the 60 day notice period or finding an immediate threat.”
“This business is a multi-million dollar annual business. We are not joking around about what we do,” Bach said, adding, “Yes, the City is liable for anything that happens on that property right now. But our liability is greatly diminished if after 60 days we tell them they must vacate, but they don’t.”
“People over profits,” Lednovich said. “Wherever we shoot this pool cue people must have notice that this is an unsafe building.”
In response to a question from Kreger Bach said, “The building needs to be demolished.” Kreger said that the dilemma is a major problem for waterfront planning and development, in addition to being a big cost if the City will need to demolish it. George said that it is better to demolish a building before it collapses.
If the violation is not cured after 60 days, it would go before the City’s Code Enforcement and Appeals Board (CEAB). The lease holder could then appeal that decision to Circuit Court. Enforcement would be stayed for months or years if the case went to court. Bach said that should that happen, she could file an injunction to force them to vacate the structure.
Bach said that CSRG’s insurance carrier might also weigh on this matter.
The Mayor asked Andrew Holesko of Passero Associates to respond to some questions. He said that his firm’s charge was to look at the 1 Front Street structure in the context of waterfront resiliency for a 1.3 mile section of shoreline in the Historic District. “It wasn’t just to go in and assess the substructure of Brett’s,” he said. Holesko explained the various studies and meetings that occurred between the completion of the field work and the production of the report.
Kreger said, “Regardless of what has been done in the past, right now the City is taking all the legal action to correct a situation that has been known for a long time.”
Ross said, “Personally, if I owned the building, I’d close it because I’d rather be sued for breaking somebody’s rice bowl than paying for their casket. But the City has to follow all the legal processes. I don’t know that we are kicking the can down the road, but we’re damned if we do and damned if we don’t.”
Bach said that she would provide an update at the next meeting.
In response to a question from Lednovich, Martin said that he has not been approached by any other party looking to operate a restaurant at 1 Front Street.
Pretty sure state building code is 50%, not 30%. The City of Fernandina Beach made it 30% in the city limits.
I believe it is also cumulative for each property. Therefore, you can not keep the repairs below the threshold to get around the rules.
Not cumulative. Its 30% for the COFB and 50% for the State, per year. You can do 30% one year and 30% the next.
Scott, thanks for catching this. You are right that the City code is stricter than the state and has said 30 percent is the make or break point for total code compliance. I made the correction. For further clarification, please see below comments from City Engineer Charlie George:
The City utilizes the FBC, 7th edition, 2020 Code. Regarding the Abatement of Unsafe Structures, the Standard Building Code, 1985 edition, Section 103.5 is still the code used for this type of situation.
The FBC, Section 22-169, defines criteria for Substantial Improvement/Substantial Damage as follows:
“Substantial Damage is defined as damage of any origin sustained by a structure whereby the cost of restoring the structure to its before-damaged condition would equal or exceed 50 percent of the market value of the structure before the damage occurred.” If the cost exceeds this amount, the Code requires the structure to be brought into compliance with current codes and standards. The City of Fernandina Beach Ordinances reduces this threshold to 30 percent (Muncipal Code, Chapter 22, Article II, Section 29.3 Technical Amendments.)
As described in the Passero report, the estimated market value of the building structure per the property appraiser is $370,000.00 resulting in a threshold value of $185,000 per the 50% FBC criteria and $111,000 per the City’s criteria.
Interestingly, the ordinance referenced also has the following exclusion listed which it says would allow repairs without triggering the substantial improvement thresholds:
If there is any question about safety, why do they continue to operate? Maybe proactive is the road to take here? This is beyond disturbing and we should never put profit over people. Wake up Fernandina! There has been more reaction from the city in response to noise than there has been over the safety of our citizens and visitors!! What will it take?
As noted in the article, the City Attorney noted that none of the engineering reports indicated that the structure was an immediate threat to safety, thus the 60 day notice to vacate or repair. When the City did this after Hurricane Matthew, CSRG/Brett’s countered with their own engineering study that indicated the structure was safe to be occupied. To resolve the tie, a third engineering firm was brought in and they ruled the structure was safe. So was any repair/rehabilitation work done since then?
The substructure, the concrete pilings and beams, appears to be the primary problem. Demolishing the restaurant building is not the solution. It’s just a means to gain access to the failing substructure.
What happens after 60 days? Will Brett’s be forced to close due to the unsafe substructure? Will boaters and the public still be allowed to walk on the unsafe substructure or will the City declare it “safe enough” for pedestrians?
The ordinance does not require the use of the property appraisers valuation. According to the appraiser (that the COFB brought in) who spoke at the city workshop the ACV appraisal, from an independent appraiser, will typically give the highest amount before the threshold is met.
The COFB can also waive the 30% and go to the 50% if they choose.
None of this may matter, in this case, as I am sure we are talking about a massive amount of money to repair, but it will in other cases.
The COFB added flood code to the 30% threshold a couple years ago, and added Xshaded zones to it. Its one, if not the, lowest flood thresholds in the State. Xshaded (basically a property that is in a low hazard flood zone, but sits next to a high hazard flood zone) properties are not required to carry flood, by lenders, and many would be shocked to find out they may have to elevate their entire house. There are HUGE insurance gaps here, so even if the work is being done due to an fire,flood,burst pipe…etc that would normally be covered by insurance, the cost to raise the foundation, would likely not be.
I sat in many meetings and raised concern over this then. It fell on deaf ears.
The COFB staff should know how all this works and work with citizens to give them a favorable outcome. It does not appear from this that they do and/or will.