Submitted by Suanne Z. Thamm
Reporter – News Analyst
June 5, 2019
Please note corrected dates of hearing: JULY 15-17, 2019
Fernandina Beach City Commissioner Chip Ross hesitated, but finally joined other commissioners in voting to approve Resolution 2019-96, authorizing City Attorney Tammi Bach to work with City claims administrator, Preferred Governmental Claim Solutions (PGCS), to appear on behalf of if necessary, and defend the City in the matter of Amelia Tree Conservancy, Inc, Conserve Amelia Now, Inc. and Sierra Club v. City of Fernandina Beach.
This administrative hearing is regarding the City Commission’s approval of the zoning change for a part of the land for the Amelia Bluff development from Conservation to Low Density Residential. City Attorney Tammi Bach has advised commissioners and the public that the hearing has been scheduled for three days July 15-17, beginning at 9:00 a.m. in City Commission Chambers. Publlic comment has been scheduled for the evening of July 16, beginning at 5:00 p.m.
This item was included as Item 7.8 on the June 4, 2019 Regular Meeting Agenda of the Fernandina Beach City Commission (FBCC). Normally, such authorizations to defend the city are approved with little discussion. However, this time Commissioner Ross, who along with Commissioner Mike Lednovich had voted against the underlying FBCC vote that generated the appeal, first peppered City Attorney Tammi Bach with several questions concerning the appeal.
In response to Ross’ questions, Bach provided the information below.
The administrative challenge was filed on May 14 by the aforementioned groups and the following day Administrative Law Judge E. Gary Early assigned to the case directed the city and the appellant to file responses by May 21. The item was not on the May 21 FBCC meeting agenda because there wasn’t time to publish the amended agenda 24 hours in advance of the meeting. Bach said that her standard operating procedure is to hold off such filings until such time as she has a commitment from the city’s insurance company to assist in the defense.
Bach said she opted to defend the action, because the underlying action was approved by a majority of the city commissioners.
In response to Ross’ question as to why the city did not leave the appeal’s defense in the hands of the developer Amelia Bluff LLC, who has joined the appeal as an intervenor, Bach replied that the city would have no rights if the intervenor would choose to drop out of the case. Since the appeal was filed against a city action, there could be a risk that the city would default if it withdrew. Bach added that if at any time during the appeal the city and the developer did not agree on something, the conflict would present a need for the city to defend itself. The city would have its own arguments, documents and defense. If the city were to withdraw it would have no control over other items, such as the location of the hearing.
If the petitioner were to prevail, Bach said, Amelia Bluff LLC would still own the land, the FLUM would not be changed and the development plat would not be approved. The developer could file different applications or take other actions. She opined that the city would be in a better position with respect to any Bert Harris claim at that point, because the city could claim that it tried to change the land use but was unsuccessful.
Bach said that the insurance deductible for this type of action is $2,500 per claim. Ross questioned this in light of his experience in filing an administrative complaint against the city earlier. Bach said that in his case the deductible was $5,000 because he had filed two claims. But Bach acknowledged that the deductibles were “the tip of the iceberg” when it comes to costs, which can range into the tens of thousands of dollars in attorneys’ fees.
She said that insurance rates covering actions such as these rise annually, not necessarily directly related to any one claim. Currently the premium for this line of coverage is around $27,000.
When City Clerk Caroline Best called the vote, Ross hesitated briefly and then said, “Due to the fact that it was the wish of the FBCC to defend itself, I’ll vote yes.”
Following the unanimous vote to support defending the city, Mayor John Miller recognized a speaker who had been overlooked in his request to provide comments prior to the vote. Miller recognized Jack Imber, and said that the FBCC could rescind its prior vote should the speaker provide convincing arguments to reconsider their vote.
Imber suggested that the case should be dropped because it looks like the city is fighting itself. He implied that public support for overturning the FBCC decision was overwhelming and that those who made the initial mistakes on the FLUM map be held accountable for their mistakes. “It’s not a fight when you are not going to win,” he said. “There’s no winning here. This has as much chance of winning as raising the Titanic and making it into an icebreaker.”
The Mayor thanked him for his input but there was no move to reconsider the item.
Later in the meeting Ross elaborated on his vote, saying that initially he had decided to vote against the item. But on further consideration, he decided the city “needed a place at the table.” He said he had not changed his opposition to the underlying issue, however.
Information about the filings, hearing and schedule are posted online on the Division of Administrative Hearings website: https://www.doah.state.fl.us/ALJ/searchDOAH/detail.asp.
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.