Legal briefs

Submitted by Suanne Z. Thamm
Reporter – News Analyst
May 13, 2014 1:31 p.m.

Fernandina Beach City Attorney Tammi Bach sat down with this reporter yesterday to provide a litigation update on matters involving the City of Fernandina Beach.

Columbia Cascade – playground equipment

In 2011, the city placed an order for close to $20K-worth of playground equipment, selected from a Columbia Cascade catalog, with the regional representative of the Oregon-based firm.  The purchase did not need to be bid because it was slightly under the $20K-threshhold.  The city “piggy-backed” on a St. John’s County contract, which had been bid, in order to get the favorable pricing.  The city paid the bill in full upon delivery of the equipment, to Site Creations, LLC, a Neptune Beach firm representing Columbia Cascade in this part of the state.

The Site Creation representative, who received the payment, failed to pass along payment to the Oregon supplier, claiming that because of his past problems with the company, he would keep the money.  Columbia Cascade filed suit against the city for non-payment, even though the city had paid the company representative.  Because the legal argument was proceeding through the Oregon court system, the city had to contract for legal counsel to represent them in Oregon.  An arbitrator ruled in the city’s favor, but since arbitration is not binding in this case, the company refused to accept the arbitrator’s ruling and has reinstated legal proceedings against the city.  To date, the city has incurred more than $20K of legal fees, and this amount may reach $45K before the case is resolved.

Bach indicated that efforts to settle the case out of court with a substantial payment have not been successful.  The Columbia Cascade attorney has appealed the arbitrator’s decision to the Oregon Circuit Court.  The case is now in the discovery phase and may head to trial in August.  Meanwhile, efforts to retrieve the funds from the local sales representative have not been fruitful.  Site Creations, LLC has no assets to attach, and the representative’s personal assets are allegedly held in his wife’s name.

When I asked Bach why the city would continue to incur such legal expenses that far outweigh the amount in question, she reminded me that the decision to pursue legal action as opposed to settling a case is made by the City Commission.  She added that the “city does not write checks just to write checks.”  The city believes that it has done nothing wrong in this case.

The Palms condominium contesting annexation into the city

The Palms of Amelia, a condominium complex on Nectarine Street, was annexed into the city following a vote of the Fernandina Beach City Commission last year, despite objections from condo owners who threatened legal action.  The condo association owners filed an appeal of the annexation with the court.  Both sides have submitted briefs although no oral arguments have been scheduled.  Bach will move to dismiss the case if the appellants take no further action by the fall.  In the meantime, the condo owners are no longer paying 25 percent surtax on water and the property has been incorporated into the city.

Marina Restaurant and the city: handicapped access issues and property dispute

Federal officials representing the Department of Transportation, Federal Highway Administration and Federal Railway Administration visited Fernandina Beach recently for an onsite inspection of accessibility issues that led to filing of a federal discrimination complaint. At issue was the question of whether patrons of The Salty Pelican have access to the restaurant via sidewalk from a city street or whether they are required to traverse railroad tracks to reach the establishment. (Click here for previous story.)

Bach reported that talks were proceeding amicably among the parties and that details are being finalized that would involve placing a railing 4 feet east of the existing rail ties with an opening large enough to allow access to the parking lot behind the Marina Restaurant.  The remaining space between the railing and the Marina Restaurant would allow for an ADA-compliant sidewalk.

The question of ownership of the land between the railroad right of way and the Marina Restaurant building remains unresolved due to incomplete city records and other documents from the 1950’s.  The city has commissioned a survey, and upon completion, will move forward to request a declaratory judgment from the Circuit Court.

Impact fees

There are currently two legal actions pending regarding the challenge to the city’s collection of water impact fees.  The city has retained outside counsel to assist in both actions.  The first is the city’s appeal of Judge Brian Davis’ ruling to approve a class action. The First District Court of Appeals has heard the case but as yet has not ruled.

The second relates to the validation of the bond to be issued by the city to finance the purchase of the water utility from Florida Public Utilities.  The city has claimed that impact fees are an appropriate means to finance this debt, whereas the complainants, who persuaded Judge Davis to rule against the city, argued the opposite.  This complicated matter was reported fully in articles published in the Fernandina Observer this winter.

Under Florida Statute, the bond ruling was automatically appealed on an expedited basis to the Florida Supreme Court.  Both sides have submitted briefs and since the Supreme Court takes a 3-month summer recess, the case will not be argued at least until the fall.  Bach said that while a ruling could come at the end of 2014, a more likely scenario is early 2015.

Editor’s Note: Adam Kaufman, legal analyst for the Fernandina Observer covered much of the impact fee lawsuit.  For further information click on the links below.

Bond Validation

“The Impact fee lawsuit – Day One”

“Impact Fees “A Paper Napkin Calculation?”click here.

Class Action

Impact fee Class Action? Argument at the 1st District Court of Appeals

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.