The impact fee saga: A new subplot added

Submitted by Adam Kaufman
Legal Analyst

June 18, 2014 1:00 a.m.

Adam Kaufman Legal Analyst Photo courtesy of Stephan R. Leimberg
Adam Kaufman
Legal Analyst
Photo courtesy of Stephan R. Leimberg

Dick Wolf perfected it in the “Law and Order” franchise. “Castle,” “Bones” and “Rizzoli & Isles” use it. In each episode of these dramas there are at least four plots: the main plot for that episode, the interaction between the lead characters, the interaction between a lead character and a family member or with co-workers in the series and/or the continuing interaction between two minor characters. “24” may have five or more sub-plots interwoven in a one hour episode. Multiple storylines are intended to maintain our continuing interest and they provide for full employment for actors. So, why not in the saga of Fernandina’s Impact Fee litigation?

A new subplot was added at last night’s City Commission meeting.


Regular viewers will recall that in August 2011 a class action suit was commenced by city resident Joanne Conlon on behalf of herself and others who paid allegedly unlawful “impact fees” charged by the City related to the City’s purchase of the Water Utility. In that lawsuit the City has appealed Judge Brian Davis’ August 2013 granting class certification. That appeal was argued before the 1st District Court of Appeal and a decision is pending. Within that lawsuit is the question of whether Conlon timely filed her complaint in compliance with the so-called Statute of Limitations. The issue, which will be raised in another episode, is when did Conlon learn of the facts and circumstances that led her to believe the imposition of the “impact fees” was illegal.

DSCN0175 Cropped 2
Records delivered to the Nassau County Historic Courthouse during the December 2013 Bond Validation Case.

In the separate but inexorably related City “Bond Validation” proceeding, litigation brought by the City of Fernandina Beach “to determine its authority to incur bonded debt,” Judge Davis ruled, in that installment, that the City lacked the authority to issue bonds secured by water utility “impact fees” and that those “impact fees” do not comply with Florida Law. Judge Davis’ decision is on appeal to the Florida Supreme Court.

In each of these matters the City of Fernandina Beach is represented by separate outside counsel and appellate counsel and has recently added attorney Buddy Jacobs, its long-time lobbyist, to the cast in the “Bond Validation” appeal.

Attorney Clinch Kavanaugh File Photo
Attorney Clinch Kavanaugh
File Photo

Enter local attorney Clinch Kavanaugh and a public records request.

Last night the City Commission authorized the City Attorney to prosecute a complaint for declaratory action against Kavanaugh to determine the lawfulness of a meeting purportedly related to the Conlon class action suit that the Commission held on May 7, 2014. Kavanaugh is an attorney of record in the Conlon proceedings. There is, of course, a back story.

On Friday May 30, 2014 Kavanaugh e-mailed City Clerk Caroline Best making a demand for the transcript of the May 7, meeting alleging that the City Commission met in violation of the Florida Sunshine Law when it included representatives of the law firm of Bryant Miller Olive in the meeting.

On Tuesday June 3, 2014 the City Commission held a regularly scheduled meeting.

On Thursday June 5, Ellie Neiberger, an attorney at Bryant Miller Olive, sent a letter by mail and e-mail to Kavanaugh. Neiberger asserted that the May 7 meeting was an appropriate “shade meeting”- a nonpublic attorney-client meeting- to discuss pending litigation, that the BMO firm had been retained as special counsel in the class action proceeding and stated the “meeting transcript is not a public record subject to disclosure.” Neiberger concluded her letter suggesting to Kavanaugh that he should “feel welcome” to call her with any questions.

Two attorneys discussing the law and attempting to resolve differences what is better than that? What could go wrong?

There was a conversation on June 5.

Neiberger followed up with a “Hi Clinch” e-mail that afternoon.

Neiberger wrote: “As discussed a few minutes ago, attached is the Complaint for Declaratory Judgment (which was filed earlier today) and the Acceptance of Service form. If you agree to accept service of the compliant without formal service by a process server, please sign and return the Acceptance of Service form a soon as possible. Otherwise, we’ll go ahead and have it formally served. Thanks.”

Bryant Miller Olive filed suit on behalf of the City against Kavanaugh to have the May 7 meeting declared lawful on the same day its attorney sent an e-mail suggesting discussions. Precipitous, quite possibly. OK, they may have predicted that Kavanaugh would not acquiesce, but that he would accept service and the declaratory action would proceed. Lawyers sometimes do disagree.

But as Ron Popeil would say “wait there is more.”

Kavanaugh responded to Neiberger that same day June 5, with two requests: (1) “please provide me with the minutes of the meeting wherein the Fernandina Beach City Commission authorized Bryant Miller Olive to file this law suit” and (2) noting that the City Attorney can only be authorized to prosecute a law suit by resolution of the City Commission “I’ll take a copy of that resolution too.”

Apparently, neither request could be satisfied.

City Attorney Tammi Bach
City Attorney Tammi Bach

At 5:05 pm June 5 City Attorney Tammi Bach responds: “Because of the seriousness of your charge in your e-mail requesting an exempt record [the May 30 request for the transcript of the May 7 meeting] I felt the suit needed to be initiated before the Commission could meet with me again.”
Bach stated the suit will not move forward without a Commission resolution.


On June 6, Kavanaugh e-mails Bach and reminds her: “You forgot there was a Commission meeting on Tuesday June 3.” Kavanaugh then argues that the lawsuit is now “void” and “cannot be resurrected by a subsequent resolution.” Kavanaugh warns Bach: “Your clients are guilty of multiple Sunshine and Public Records violations.” Kavanaugh renews his claim that Bryant Miller Olive lawyers were illegally included in the May 7 meeting on behalf of the City since the firm was not litigation counsel hired by the Commission for the Conlon class action lawsuit but “consultants” hired by the City Attorney and City Manager.

Last night the City Commission confirmed there could be another scenario added to the Impact Fee saga. The Commission has given Bach the authority to sue Kavanaugh presumably before Kavanaugh can sue the City.

But last night’s episode ended with a cliffhanger. Bach indicated that there had been discussions with Conlon’s attorneys, noted that she had within 120 days to serve a summons and sue Kavanaugh “at a time that she thought was appropriate” and asked the City Commission to meet “in the shade” Thursday morning to discuss the class action litigation and the Bond Validation proceeding.

Will Kavanaugh be sued? Will the parties resolve the public records request? Will the District Court of Appeal rule on the question of class action certification? Will the Commission settle the impact fee litigation? Will the show continue into next year?

Oh, for “Boston Legal.”

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Malcolm Noden
Malcolm Noden (@guest_19826)
9 years ago

To quote a most applicable thought from Sir Walter Scot, “O what a tangled web we weave, when first we practice to deceive.”

Dave Lott
Dave Lott(@dave-l)
9 years ago

Thanks Adam for the recap. Can’t wait for the next episode.

I busted a mirror and got seven years bad luck, but my lawyer thinks he can get it knocked down to five. – Steven Wright

gerry clare
gerry clare(@gerrycclaregmail-com)
9 years ago

Adam, what an incredible legal tangle. Thanks for some clarity.

Peggy Bulger
Peggy Bulger(@peggy-bulger1949gmail-com)
9 years ago

I think this is more of a reality TV serial . . . can’t wait for fisticuffs to break out in the commission meeting! Adam, great recap of a sorry story indeed . . .

chuck hall
chuck hall(@bob)
9 years ago

Go get ’em Clinch…..

John P. Megna
John P. Megna (@guest_19927)
9 years ago

Sounds like lawyers believe they are never wrong and can’t do no harm. I missed counted, what round are we in? In Ferandina who has more fun than people?