Submitted by Suanne Z. Thamm
Reporter – News Analyst
June 11, 2019 8:49 a.m.
Much work has been done over recent years to improve the appearance of Fernandina Beach’s 8th Street (SR 200, A1A). City staff has worked with FDOT, 8th Street business owners and the public to find ways to make the heavily traveled thoroughfare more attractive and welcoming to visitors and prospective businesses. From the south end of the city limits to the intersection with Centre Street-Atlantic Avenue, the results of hard work and investment have begun to transform the former eyesore, which carries industrial traffic to both mills and the Port of Fernandina, into a road lined with vibrant businesses that project a positive image of the community to those who visit the city as well as those who live and do business here.
The success story continues south along the street, except for one notable stand-out: the former Taylor Rental Building located at 400 S. 8th Street.
At their June 8, 2019 meeting, the Code Enforcement and Appeal Board (CEAB) of the city of Fernandina Beach voted 5-2 to send a recommendation to the City Commission (FBCC) to close out this case, after 8 years of citations and hearings. They approved settling the case for payment of $20,000 in fines and fees within 30 days of approval by the FBCC, despite the property owner’s having accrued $317,365.94 in fines since October 2015.
Board members were not so much happy with the proposed resolution, but rather resigned to making the best of a less than optimal situation. The FBCC will consider whether to accept the CEAB’s recommendation at their July 2, 2019 Regular Meeting.
City Code Enforcement has cited this property on numerous occasions since at least 2011. Code Enforcement Officer Michelle Forstrom and City Attorney Tammi Bach have attempted to work with property owner Mark O’Brien over the years to bring his property into compliance with city codes. City Attorney Bach even went so far as to recruit local attorney Miriam Hill to work with Mr. O’Brien to resolve the outstanding issues. As a result, several issues involving property clean up and sign removal have been addressed.
What has made the situation especially difficult and frustrating has been the owner’s failure to acknowledge or address citations and notices until recently in the process.
In October 2015, the CEAB found property owner Mark O’Brien in violation of several sections of city code with respect to cleaning of lots, maintenance of structures, and sign violations. He was ordered to come into compliance and to pay administrative fees. He was notified that effective October 2, 2015, he would be assessed a fine of $100 per day until his property was brought into compliance with city code. He was also notified that if the fines were not paid within 30 days, the city would place a lien on the property; and if that lien remained unpaid for a period of three months, the city could foreclose on the lien or sue to recover a money judgment for the amount of the lien plus accrued interest.
In May 2017, once again the CEAB found the property owner in violation and upped the fines to $250 per day beginning May 4, 2017. Again, notice was given that the city could opt to foreclose or sue to recover money judgments.
On January 5, 2018, yet again the CEAB found violations, this time on the associated property adjoining to the east — 431 S. 9th Street. Fines of $100 per day were added to accumulating fines on the 8th Street property. The standard notice of potential foreclosure or lawsuit was added to the notice.
Liens have been recorded in the County Record Books.
While it appeared earlier this year that an interested party was moving forward to purchase the property, that deal fell through.
The fines and fees that have been assessed and accrued since October 2015 in the three (3) proceedings before the CEAB amount to $317,365.94.
CEAB makes recommendation on June 8 to settle case
At the June 8, 2019 CEAB meeting, members heard an appeal from Miriam Hill, Mark O’Brien’s attorney, for a reduction in the fees charged against his property. Following conversations with Hill, City Attorney Tammi Bach said that O’Brien claims that he can only pay $20,000 to close the case.
Prior to the CEAB’s consideration of the reduction in fees, Board Member Adam Kaufman with the permission of the Chair read a prepared statement recapping the case’s long history. He noted that O’Brien had ignored city notices of code violations for many years, and that this property has been viewed as an eyesore by those desiring to improve the 8th Street Corridor. Kaufman said, “If the standard upon which settlement and resolution is to be based is [O’Brien’s attorney’s] assertion “that is all he can pay” together with the representation that he ultimately resolved all outstanding violations; then there are fundamental questions of fairness that must be considered and applied to all pending and future cases.”
Kaufman said that there has been no evidence provided that O’Brien’s finances are such that he can only afford to pay $20,000. He concluded, “If the CEAB decides to accommodate Mr. O’Brien’s request, it needs to consider the consequences and ramifications of that decision, and how it applies to Code Enforcement in future cases.”
Miriam Hill, O’Brien’s attorney, represented her client who was in California. She said that according to Bach, code fines are not set to be a source of revenue for the city but rather to incent violators to come into compliance with codes. She said that fine amounts may be revised by the CEAB. She cited legal basis for fines: gravity of the violation, corrective actions taken and any previous violation. Hill said that Bach had recruited her to represent O’Brien in the code violations because she wanted to make sure that O’Brien had been afforded due process.
Within two weeks of meeting O’Brien, Hill had convinced him to list his property for sale. She helped him identify a broker. There was an offer on the property. An engineer was hired to determine if there was a threat of imminent safety due to structural problems with the building. Hill recapped efforts taken by O’Brien to clean up the property, remove a sign and address building deficiencies.
Hill said that in light of the progress that has been made to bring the property into compliance, the CEAB’s history of reducing fines after considering personal hardships and other individual circumstances, and that the property remains for sale at what has been termed an aggressive price, she advocated that the fine be reduced to $20,000, which according to her client, would be the limit of his ability to pay. This figure is ten times the cost that the city has itemized in terms of administrative fees.
Hill said that closing this case would allow the CEAB to move forward with other business and remove liens from the property, making it more marketable. She said that despite several meetings since her involvement began in March, the CEAB has made no final decision.
CEAB Chair Buddy Boyd asked what would happen if a motion to approve this proposed settlement did not pass. Bach said that the liens would remain on the property for 20 years or until they are satisfied. She reminded the board that under law they could make a recommendation, but that only the City Commission could file a release of lien.
Board member Cynthia Crow reminded other board members that there was also an option to move forward with foreclosure on the property to recover costs of the fine. This action had been considered earlier but held in abeyance as other options were considered. Bach recommended that the CEAB decide at this meeting whether to accept the proposed reduced fine as settlement of the case or direct her to proceed with foreclosure.
Board member Adam Kaufman urged other members to think about this matter in terms of fairness and equity to all persons who come before the board. “What this [proposed settlement] is saying,” Kaufman said, “is after 3 and a half years essentially we are approving a settlement equal to the amount of interest accrued [on the outstanding fines].”
“If that’s what we are going to do, then the City Commission needs to understand that we are not going to apply any real fines.”
Crow agreed with Kaufman about the need to be consistent while acknowledging that the CEAB has never seen a case like this one before. “I’ve tried to the best that I could in treating this case consistently,” she said. She disagreed with Kaufman’s premise that this would affect future cases since each case is considered on its own set of facts.
Chair Boyd said that in almost every case code violators seek a reduction in fines. He did not believe that the board could set an arbitrary standard, because every case is different. He added that the board has generally accepted any offer that has been brought forward.
Code Enforcement Officer Michelle Forstrom disagreed with Boyd stating that many violators pay the fines levied. She had recommended a reduced fee of $50,000 when it appeared that there was a buyer for the property.
Crow clarified that even if the CEAB would support settling the case against O’Brien for $20,000, it would not prevent future citations on that property for continued or new violations. Bach said that new fines could be imposed up to $500 per day.
Board Member Nicole Kresse said that she did not support moving forward for foreclosure on any property when there is not a hazard that jeopardizes public health or safety. She said she would support the $20,000 offer, since the property has been brought into compliance, the goal of the board.
Crow said that she was not happy accepting $20,000, which basically represented $18,000 in fines and $2,000 in administrative fees. But in the interest of moving the case forward, she agreed to support the offer.
Chair Boyd said, “I don’t think there is a single business owner in Fernandina Beach who would look upon $20,000 as an insignificant fee.”
Member Marlene Chapman said she would not support the $20,000 offer. “For the length of time, and what this has involved, I cannot agree,” she said.
“This is a situation when for many years the city felt this building was unsafe,” Member Harry Byrd said. “[O’Brien] was operating a business in that building, and he had employees working in that building. And he was ignoring the city. We have had other businesses request a reduction in fines and we turned them down because they ignored the city. But I’m not in the business of generating revenue for the city.”
Member Shults said she would stand with $20,000 to get it over with. “Otherwise, it just goes on and on and on,” she said.
Crow moved to accept the reduced fine of $20,000 with the proviso that it be paid within 30 days. Shults seconded the motion. Bach clarified that the City Commission would consider the CEAB recommendation at its July 2 Regular Meeting. An amendment was added that if the Commission supports the recommendation but that the fine is not paid within the 30 days as stipulated, the city will proceed with foreclosure on the property.
The motion passed on a 5-2 vote, with members Kaufman and Chapman opposed.
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.