Dear Chair and Members of the Nassau County Commission:
I, along with Reese Henderson, represent a group of property owners on Amelia Island, including the Amelia Island Sanctuary Property Owners Association (“Affected Property Owners”) who have asked me to review and provide their objections to the most recent proposed Settlement Offer and Agreement (“Proposed Agreement”) between Nassau County and Riverstone Properties, LLC (“Riverstone”). We understand the Proposed Agreement is scheduled for consideration on April 24, 2023.
EXECUTIVE SUMMARY
The Proposed Agreement with Riverstone is premature, deeply flawed and does not represent a good deal for the taxpayers and citizens of Nassau County. It rewards the efforts of a developer to rollover the County and its citizens by awarding development and other rights without following applicable laws. Contrary to the County Attorney’s advice, this will not bring an end to litigation, and will only encourage other developers to take the same approach.
BACKGROUND
It is our understanding that the intent of the Proposed Agreement is to settle two specific lawsuits:
1. Riverstone Properties, LLC v. Nassau County, Florida, Case No. 22-CA-247 which was filed in the Circuit Court Fourth Judicial Circuit in and for Nassau County relating to judicial claims in a Bert Harris lawsuit (“Bert Harris Lawsuit”).
2. Riverstone Properties, LLC v. Nassau County, Florida, Case No. 21-CA-190 filed in the Circuit Court Fourth Judicial Circuit. This case is in regard to alleged procedural flaws with Ordinance No. 2021-08, adopted June 14, 2021 (“Original Ordinance Lawsuit”) .
As you may recall on May 23, 2022, pursuant to a Notice of Claim under the Bert Harris, Jr. Act, Fla. Stat. Section 70.00, the County Attorney, Denise May brought forward a Settlement Offer and Agreement to the Nassau County Board of County Commissioners (“BCC”) for consideration (“Bert Harris Offer”). Prior to the BCC consideration of the Bert Harris Offer, we presented the attached letter and attachments which detailed the Affected Property Owners objections and legal arguments as to why the Bert Harris Offer must rejected. (“Objection Letter”). The Bert Harris Offer was rejected by the BCC after over 100 Affected Property Owners attended and spoke in opposition to the proposal.
The Proposed Agreement presents the same development proposal for settlement as the Bert Harris Offer. The only significant difference between the Bert Harris Offer and the Proposed Agreement is that Nassau County would also pay $250,000.00 to Riverstone for its attorneys’ fees. Thus, for the reasons stated herein and the reasons stated in the Objection Letter, the Affected Property Owners request rejection of the Proposed Agreement and request that Nassau County remain vigilant in its efforts to defend the Original Ordinance and the Amended Ordinance1.
PENDING LITIGATION
Currently, there is only one Motion pending before the Court in the matter of the Original Ordinance Lawsuit. Riverstone amended its lawsuit to include a new allegation that there was not a proper determination by the Planning and Zoning Board (“PZ Board”) serving as the required local planning agency in providing a recommendation to the BCC on land use regulations. Although Riverstone has made a variety of arguments as to the flaws of the Original Ordinance, the Court has not yet ruled on this procedural question.
Riverstone is essentially claiming that because the PZ Board’s motion to recommend the ordinance failed on a tied vote, the BCC procedurally could not take up the ordinance. However, the required procedure in the Nassau County Land Development Code and Florida Statutes was followed, which requires consideration and action by the local planning agency. That occurred. Thus, the BCC as the ultimate determiner of consistency with the Nassau County Comprehensive Plan, properly voted to approve the Original Ordinance on June 14, 2021. There is no direct case law which undermines the BCC action on the Original Ordinance nor has the Court considered the arguments Riverstone or Nassau County. And, as noted in the Objection Letter, Riverstone was in attendance at the June 14, 2021 hearing on the Original Ordinance and failed to raise any of these procedural arguments. Thus, Riverstone has waived its right to raise such issues at this juncture. Thus, settlement at this juncture is premature2.
PROPOSED SETTLEMENT
Attorney Fee Request:
As stated above, the only matter with a pending motion is the Original Ordinance Lawsuit. In that litigation, there is no claim, nor can there be a claim for attorney’s fees. Thus, the attempt by Riverstone to attain legal fees at this stage of the litigation likewise both premature and unnecessary. Riverstone instead would have to litigate and prevail on its Bert Harris Act lawsuit, which is highly speculative particularly at this stage of the lawsuit where there have been no substantive hearings and minimal discovery. Certainly nothing has occurred to warrant a quarter million dollars in attorney’s fees.
1 The Original Ordinance was amended by the “Amended Ordinance” 2021-20, adopted on September 27, 2021. The Amended Ordinance increased the allowable height provisions from 35 feet to 45 feet.
2 Even if the Court determines that there was a procedural foot fault, there are many remedies short of invalidating the Ordinance. Further, the Pending Ordinance Doctrine would appear to apply as well given how long the Original Ordinance was under consideration, i.e. from February 2, 2021 to June 14, 2021.
Development Approvals:
As stated above, the development approval portion of the Proposed Agreement is identical to the Bert Harris Offer. The fatal flaws in Proposed Agreement are identical to that of that Bert Harris Offer as specifically detailed in the Objection Letter. Approval of the Proposed Agreement would very clearly be in contravention of law, including illegal contract zoning. This renders the Proposed Agreement subject to a legal challenge, which would likely succeed.
Original Ordinance Litigation:
The Proposed Agreement ignores many of the issues with Riverstone’s claims in the Original Ordinance Lawsuit. It is important to note, that there are many defenses which do not appear to have been raised or fully argued, including the fact that any claimed procedural deficiencies have been waived, that the Amended Ordinance would render any potential procedural deficiencies moot and that the pending ordinance doctrine would apply to any application filed under the Original Ordinance. Given these deficiencies, it is not clear why the County would simply settle by giving Riverstone everything it has asked for without a fight or even a negotiation.
CONCLUSION
As stated in this letter and the Objection Letter, which is attached hereto the Proposed Agreement is premature, legally flawed and does not present the best option for Nassau County. The Affected Property Owners remain steadfast in their opposition and stand ready to support Nassau County in rejecting the flawed and inappropriate settlement.
Julia Mandell
and Reese Henderson
FINALLY!! Someone who wants to put these people in their place! The county needs to ENFORCE the tree ordinance it has, MAKE Riverstone do a tree survey, and create their development around the existing live oaks that are there. It CAN be done!! THAT would be COMPROMISE ! Until developers begin to see the VALUE in these old growth trees and how important they are not only to the property they sit on, but to the surrounding areas, no one is going to win. With rising property insurance rates and mandated flood insurance due to the poor choices of so many people NOT having flood insurance when they should have (ALL of us in FL, period!!) we are doomed without allowing Mother Nature to remain INTACT to help us when storms hit. Wetlands and mature trees are VITAL for storm protection and flood control. Period. It is a FACT. Riverstone — how about change your tune and do the right thing.
Lucy, I was in full agreement with you until you stated that ‘ALL in the state of Florida should have flood insurance period’!!! I’m not in a flood zone, and don’t live on the island.
Please name the members of the PZ Board that voted against recommending the ordinance.
As a proud supporter of Amelia forever campaig I really appreciate the passion of why it would be better to have this project delayed and or reconsidered until all the proper environmental impact studies have been completed. However I must also add that having been in California and leaving there for a lot of the same reasons that now being contested here I doubt they will win. The developers seem to have the legal basis for moving forward not withstanding all the very well articulated and reasonable objections. I fear that the developer will not only win but also get damages. The county made many mistake along the way if they were serious about protecting the environment and limiting the size and scope of this development. That’s just my two cents.
Thank you for publishing this letter. County citizens need to understand the serious flaws of this case from outside legal perspectives and the fact that settlement under the proposed terms could result in greater future costs with other developers following similar approaches. Citizens also need to realize that higher costs will result from our failure to prepare for sustainability and resiliency of our economy and environment in the face of sea level rise, storm damage and climate change. This is a critically important parcel because of the protective value of its maritime forest and dune structure for both the island and the area west of the Amelia River. This parcel should be conserved. The effort by the county should be directed at cobbling together the funding to support this acquisition rather than simply rolling over to all demands.
In my opinion:
Our county attorney Teresa May is at best incompetent and way over her head
She does not represent the citizens interests and should be fired and censured
If you’re going to castigate her, you should at least get her name right. It’s Denise May and she’s the most competent person in that seat in 30 years. She didn’t negotiate this settlement agreement, it was proffered by Riverstone. Her DUTY under her job description and by statute is to present it to her client, which is the Board of County Commissioners.
Considering her predecessor, that’s not a high bar (no pun intended) to step over. Yes, her job is to present the offer but more importantly, it is also her job to provide comprehensive SOUND legal advice to the commissioners and I believe that is what is being questioned by Mr. Damerow.
Along with all the good points made in this letter, a major one is that developers all over NE FLA are watching this case to see who prevails. We must fight the Riverstone development to send a message that we care about conserving the natural habitat of Amelia Island and will fight other attempts the bully us into more development.