Commentary: Bad Advice on ‘Special Privileges’ for Developers

By Faith Ross

Recently Tammi Bach, the Fernandina Beach City Attorney, gave a workshop for the city’s Board of Adjustment. Based on her advice to the board, it seems our local government might not be interested in upholding local law, ordinances, or statutes if it’s going to cost money.

She told the board members, “You’re going to get sued one way or another. The suit from the citizens is going to be a heck of a lot cheaper than the suit from the developer.”

The message, delivered by the lawyer who advises city commissioners and key staff people, is clear: If both, or either side in a land use or zoning dispute threatens to sue the city, rule against the private citizens. It’s cheaper to pay their legal fees if you lose.

But this overlooks an important fact: In almost all local government cases, the local government’s insurance company hires and pays the defense attorneys to defend the city or county. The local government doesn’t lose money on insured cases, the insurance company does.

So if the city or county is properly insured, it makes no difference whether the suit was filed by citizens or a well-heeled developer or other claimant. Her message that it “saves money” for the city to cut the well-heeled claimant some slack is not only illogical – it’s untrue.

So the bigger question is, does anyone actually save money with the approach that Ms. Bach advocates? Yes indeed.

A well-funded party threatening to sue a local government definitely gets to save a lot of money if it receives a “special privilege” from the government – that is to say, a free pass not to follow the law.

These “special privileges” are very different from a legally granted variance. A variance does not allow some people to have more rights than others. A legally granted variance compensates for a property right that was lost due to a “substantial hardship” (not just a law someone doesn’t want to follow).

A “special privilege” is granted to a favored few who are given a pass to violate ordinances.

When that happens, private citizens who want the law to be enforced pay twice. First, they pay taxes that cover the city’s insurance premiums. Then they pay their own legal fees.

How does this save money for citizens who want a government based on equality? It doesn’t. And even if they win, in a sense, they’ve lost.

Any board member or elected official who accepts Ms. Bach’s spurious advice should be asked to answer some serious questions. Such as, what ethical government promotes the idea that a “special privilege” policy is appropriate? And what ethical government refuses to defend its own laws? What honest government says it “saves money” to side with the well-heeled claimant when the government is insured?

Despite the belief of some who may think local government is just a step on the way to a higher office, the constitutional requirement of equal protection under the law is at the beating heart of every governing level in the United States. The U.S. Constitution says nothing about “saving money” for well-heeled litigants who don’t want to follow the law.

Local governments that tell ordinary citizens that they will not enforce laws or ordinances under the guise of saving money by granting well-funded litigants the “special privilege” of an ordinance-free project are more than inappropriate. They are disingenuous and unlikely to carefully tend to a democratic government.

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Marlene Chapman
Marlene Chapman(@crew2120)
10 months ago

Faith, you are spot on! It has appeared for some time that money wins out over the little guy and that is wrong in every aspect. For Ms Bach to state that it “saves money” is ludicrous and needs to be addressed. We’ve seen more and more that she skirts issues and seems to take the easy way out. We pay her to do her job to the best of her ability, not take the easy way out! Fernandina citizens needs to wake up, speak up and clear up what’s wrong in our city. If heads have to roll, so be it!

Doug Mowery
Doug Mowery(@douglasm)
10 months ago

My antennae went up with Tammi seeming to push the Tringali development. You have to look at a few other folks than just the Commissioners if you want to preserve things in this City……City Managers and Attorneys have enormous influence on the lives of our citizens.

As I commented after the Riverstone settlement article, I haven’t seen an attorney yet who would rather than fight than settle…..they are exceedingly risk adverse. Miner’s headlamps should be issued when they graduate from law school for all the caving they will be doing.

Taina Christner
Taina Christner(@taina)
10 months ago

Thank you Faith for reporting on this. Did this occur at the City annual Ethics training? If this advice was given,as quoted, then why do we even need a city attorney? IMO It’s time for some more big changes in our City Government – before the damage is irreversible. If certain administrators do not want to do their jobs, then stand aside and let someone else -who is interested in upholding our city laws and codes – do it. Faith, your question sums it up well-“what ethical government refuses to defend its own laws?” Bingo.

Kenneth Dalton
Kenneth Dalton (@guest_68941)
10 months ago

A wise Uncle once told me: “Big Money” always wins. There certainly are plenty of examples which prove his point!!!

Lucy Peistrup
Lucy Peistrup(@lucyp74)
10 months ago
Reply to  Kenneth Dalton

Spot on Mr. Dalton. They are attempting to gentrify us from our own homes, in my opinion. From the astronomical rise in homeowners insurance rates (and no true help from the legislature on that) and everyone on board to continue raising our taxes when these DEVELOPERS should be the ones paying for the NFRASTRUCTURE that we have had to foot the bill for, it’s beyond maddening. While I have been a huge supporter of the Governor, I am quite upset that he has chosen his political path over protecting the citizens of this state. He has done NOTHING to help us with our rising insurance rates and doesn’t seem too concerned about it either. He’s gone full blown politician and that irks me. He has instead chosen to support the INDUSTRY over the people and that is wrong.

Guest
Guest(@pawleys_sc)
10 months ago
Reply to  Kenneth Dalton

Big money wins a lot of battles. Truth wins the war. Tammi Bach will figure that out sooner or later.

Lucy Peistrup
Lucy Peistrup(@lucyp74)
10 months ago

https://www.pnj.com/story/opinion/contributors/2023/03/26/hb359-sb-540-will-muzzle-floridians-who-challenge-bad-development/70029508007/

Currently HB 359/ SB 540 are chugging their way thru our state legislature on the way to the governor’s desk which will make it next to impossible for a citizen or grassroots organization to sue these deep pocket corporations. If you haven’t spoken up yet, you better. (Not that it really matters—I have stomped and yelled until I have no voice and no one listens.
) If you aren’t laden with CASH, you have no voice anymore. It’s beyond disgusting.

Robert Weintraub
Noble Member
Robert Weintraub(@rukbat23gmail-com)
10 months ago

There’s another factor. Last time I looked, the city only had a $100,000 insurance coverage while most Florida cities our side had at least twice that much according to the Florida League of Cities.

Guest
Guest(@pawleys_sc)
10 months ago

I’ve lost count of how many times I’ve heard similar concerns about Tammi Bach. Fernandina Beach citizens are paying for this? Why are the Commissioners keeping her on board? It’s time for her to go.

Matt
Matt (@guest_69106)
10 months ago
Reply to  Guest

Because Ms Bach is nothing more than a rubber stamp for her employers

Al MacDougall
Al MacDougall (@guest_69030)
10 months ago

Simple minded reasoning……so sad. that so many are taken in…..

Al MacDougall
Al MacDougall (@guest_69063)
10 months ago

To survive Fernandina needs well planned growth. I am sure sensible people understand this and that common sense (not biased attitudes) will prevail–or Fernandina suffers.