Gateway to Amelia annexation – Who is suing the city?

Submitted Adam Kaufman
Legal Analyst
August 11, 2014 1:00 p.m.

The City of Fernandina Beach has asked the Circuit Court in and for Nassau County to reject and deny the petition in a lawsuit brought in the name of The Village Center At Gateway to Amelia Condominium Association, Inc. The lawsuit challenges the City’s ordinance annexing over 17 acres of land commonly known as Gateway to Amelia at the corner of A1A and Amelia Island Parkway.

On May 20, 2014, after four public hearings, the City Commission by a 4-1 vote adopted a voluntary annexation ordinance annexing the property. Commissioner Gass cast the dissenting vote. In 2008 property owners or their agents at Gateway to Amelia signed petitions to annex the property in exchange for City sanitary sewer service.

The petition is ostensibly brought on behalf of “property owners” and alleges, in part, that upon annexation they will “suffer material injury” specifically in that property taxes will increase and that that they will be “required to abide by additional or more stringent regulations for operating their businesses and development of their properties.” The lawsuit alleges the agreements and the petitions for annexation are technically defective and were, 7 years after execution, not acted upon “in a timely way.” The suit notes that ownership of certain condominium units have changed during that period. Further, the lawsuit claims that the annexed area is not contiguous to the jurisdictional limits of the City and creates impermissible isolated “enclaves,” “pockets” and “finger” areas of property.

The petition in the lawsuit challenging annexation was verified by Charles “Charlie” S. Monroe II purportedly in his capacity as President of the Condominium Association.

In its response to these claims the City underscores that none of the property owners of the individual office condominium units have joined the lawsuit. The City maintains that there is no evidence that the Board of Directors of the Condominium Association or even an individual owner authorized this action. The City calls to the attention of the Court that there is no evidence that the petitioner Association, a corporation, is itself a property owner of property within the annexed parcel. The City emphasizes that the petitioner Association has provided the Court no evidence it has the authority to file the lawsuit on behalf of property owners within the annexed area. Further, notes the City, at least one property owner has informed the Circuit Court that the petitioner does not represent its interests in this litigation.

Monroe, in his sworn statement verifying the petition in the lawsuit states that he is President of the Association and “authorized by the Board of Directors for said corporation with regard to matters relating to this petition.” There is no record evidence in the court documents that suggest that as President he had authority to act unilaterally to institute litigation against the City nor is there any record of action of the Association that would authorize him to initiate suit against the City.

By letter dated April 14, 2014 and at an April 15, 2014 hearing before the City Commission Molly M. Garrett, the attorney who filed the petition on behalf of the Condominium Association, informed the Commission that she represented Ron Flick, “owner and stakeholder” within Gateway to Amelia, as well as Andy Alexander of Somerset Marsh Cove, LLC., owner of Somerset Apartments and opposed the proposed annexation on behalf of her clients. The Somerset property was removed from the annexation ordinance after the April 15 meeting.

Ron Flick also appeared before the Commission in opposition to the annexation on April 15 and May 20, 2014. Neither Flick, individually, nor as owner/agent of the corporate entity Compass Group are named petitioners. “Charlie” Monroe as owner of Digital Village in Gateway to Amelia also appeared before the City Commission on April 15 and May 20, 2014. Neither Monroe, as a property owner, nor Digital Village is named or identified in the petition.

The City contends that under Florida law a condominium association is not permitted to file an appeal of an annexation ordinance when there is no evidence that individual condominium owners have consented to that appeal.

In its August 5, 29 page response to the lawsuit with an additional 70 pages of exhibits, the City stresses that all properties within the annexed area are subject to valid signed annexation agreements. All those properties are provided the use of the City sewer system and that current property owners who purchased their properties subsequent to 2008, says the City, are beneficiaries of those annexation agreements. The purpose of the agreements, maintains the City, was to “memorialize” the City’s promise to provide sanitary sewer service in exchange for annexation of the Gateway Commercial Complex when City limits became contiguous in accordance with Florida law as it contends those boundaries are now.

The City asserts that the annexed property is at the present contiguous to its boundary which is at this time the southern property boundary of Scott & Sons Fine Jewelry at A1A and Amelia Island Parkway combined with southern boundary of the recently annexed adjacent Florida Public Utilities property. The City observes that Florida law provides that a separation of the annexed property from City limits by a right-of-way for a road does not prevent annexation. The City argues that the record together with a map of the subject property clearly demonstrates that the annexation did not create enclaves surrounded by City limits nor enclaves of unincorporated properties without access to unincorporated roads in violation of law or a “finger area in serpentine patterns” as claimed.

The City also calls attention to the fact that other than “speculative statements” there is no record evidence provided by the petitioner to the Circuit Court that the City’s regulations for operating businesses and developing properties are more stringent or additional to Nassau County’s as is alleged in petition.

The City’s response to the petition in this lawsuit was prepared by Tammi Bach, the City Attorney.

In its review of the City’s action it must be demonstrated to the Circuit Court by a petitioner challenging annexation that the City failed to observe the essential requirements of the law or that the adoption of the ordinance by the City Commission was not supported by competent substantial evidence. A hearing has not been scheduled.

Adam Kaufman is a semi-retired mediator and attorney. A graduate of Northwestern University School of Law, he was born and raised in the Bronx, NY. and attended NYC public schools, including Stuyvesant High School. He still serves on the American Arbitration Association Labor Panel. From 1994 – 2005, he was Regional Director for the New York State Public Employment Relations Board