Sunday, February 23, 2014

Historic Architectural Review Board Votes 4-0 to Uphold Denial of Permit to 7-Eleven for Gasoline Station at May Street and San Marco Avenue, in Historic Area of our Nation's Oldest City: "OH, THANK HEAVEN!" (R)

On February 20 (Thursday evening), the St. Augustine Historic Architectural Review Board (HARB) unanimously rejected the appeal of a putative 7-Eleven franchisee to put a twelve-pump gasoline station in our historic downtown.

The rejected applicant is FIRST CITY DEVELOPMENT LLC, whose registered agent is WALLACE R. DEVLIN, Sr. and sole director is SHIRLEY H. DEVLIN, of 7518 ALBERT TILLNIGHAST DRIVE, SARASOTA, FLORIDA 34240. FIRST CITY's lawyer did not identify its beneficial owners when I inquired at the hearing. The address of the LLC is a residence whose assessed value is $858,300, with some 3771 square feet, three bedrooms and three bathrooms. Several DEVLIN family members are dodgy Florida real estate speculators. Their Sebastian Inner Harbor Project collapsed in foreclosure. The property remains vacant. The DEVLIN GROUP filed for bankruptcy protection in 2011.

Those dodgy DEVLINs -- and their unnamed foreign investors --and 7-Eleven refused to listen to reason. 7-Eleven refused to respond to letters from our City Manaager.

Their devilishly located proposed 7-Eleven at May Street and San Marco Avenue would have been an unwelcome addition, one that would have destroyed our Ancient City on the eve of our 450th anniversary.

The location was patently offensive, like proposing to locate an abortion clinic next door to the St. Augustine Cathedral (or the Gerard Campus for pregnant girls). How gauche. One need only read 7-Eleven's boastful Fun Facts (below) for an insight into its insidious greedy corporate culture.

The proof of incompatibility was unrebutted by 7-Eleven's lawyer.

The propective 7-Eleven franchisee's appeal was not only meritless, it was sloppy and self-induglent and emotional.

Thus, the HARB vote and deliberations were not even close.

The vote was 4-0.

In the words of 7-Eleven's own registered trademark, "Oh, thank heaven!"(R)

The ugly, misbegotten proposed 7-Eleven gasoline station in the wrong location would occupy the former block of retail stores where Manatee Cafe was once located, for which a demolition permit was issued on the premise that it would be replaced by similar retail stores facing the street, not a gasoline station that would ruin the ambiance of our Nation's Oldest City.

The 7-Eleven franchisee was rejected for a permit application by St. Augustine Planning and Zoning Director Mark Knight.

Mr. Knight's rejection of 7-Eleven was solid: based upon the proposed gasoline station's turning radii and its demand to have wider than a 25 foot driveway. (Two other issues were resolved before the hearing).

Mr. Knight's determination was upheld by HARB 4-0, with 18 of 19 public witnesses supporting Mr. Knight's determination with strong factual and legal arguments

The lone dissenter emitted a few curt slogans “about property rights” of the unknown unnamed 7-Eleven franchisee, discourteously ignoring the property rights of the other witnesses and their right to the peaceful, quiet enjoyment of their homes in the historic Fullerwood and Nelmar Terrace neighborhoods).

Every other sworn public hearing witness testified against the appeal: each was both an expert and fact witness as to the condition of the intersection and the neighborhoods adjoining it, including the Nelmar, Fullerwood and Vilano beach neighborhoods.

The testimony was unrebutted and irrefragable: the May and San Marco intersection is already clogged, rated an “F” by Florida DOT for impassibility. It is located on the only evacuation route for Vilano Beach. It is adjacent to the Main Branch of the St. Johns County Library, the Carousel and Davenport Park and the Florida School for the Deaf and Blind, with deaf and blind pedestrians often walking on the sidewalks.

To loud responses from the audience, the lawyer for 7-Eleven, ST. JOHNS LAW GROUP lawyer JAMES GEORGE WHITEHOUSE lied: WHITEHOUSE falsely claimed there was “no sidewalk” and no pedestrian traffic.

After lying and being called out for it, brazen 7-Eleven corporate lawyer JAMES GEORGE WHITHOUSE did not apologize (unlike the late developer lawyer GEORGE McCLURE, who apologized to St. Augustine City Commissioners for lying about the position of the Roman Catholic Church before he died last year, having been called out for his lying by Cathedral Parish Pastor Fr. Thomas Willis.).

But 7-Eleven lawyer JAMES GEORGE WHITEHOUSE (Florida Bar Number 100250, ST. JOHNS LAW BROUP, 509 Anastasia Blvd, St. Augustine, Florida 32080-4510, tel: 904-495-0400, fax: 904-495-0506, did not just lie about sidewalks.

7-Eleven lawyer JAMES GEORGE WHITEHOUSE led his engineer witness improperly, testifying for him, leading him.

7-Eleven lawyer JAMES GEORGE WHITEHOUSE patronized HARB members.
7-Eleven lawyer JAMES GEORGE WHITEHOUSE cajoled.
Lying lawyer JAMES GEORGE WHITEHOUSE whined.
Close to crying at several points, lying 7-Eleven lawyer JAMES WHITEHOUSE made pointless points – silly debater's points, not legal arguments backed by any reliable, competent or material evidence..
7-Eleven lawyer JAMES WHITEHOUSE acted out, with histrionics, as if his pleading, whining and patronizing were somehow a performance art form -- as if his rising octave and pitiful, plaintive nasal tone of voice was convincing, as if his aggressiveness and pedantry constituted winning legal arguments.
7-Eleven lawyer JAMES WHITEHOUSE made unscientific and illogical arguments.
7-Eleven lawyer JAMES WHITEHOUSE testified without being sworn.

7-Eleven lawyer JAMES WHITEHOUSE elicited hearsay from a project consulting engineer who was not a traffic engineer, using leading questions to bring out irrelevant, inadmissible hearsay testimony about about what a civil engineer from the Florida Department of Transportation.
7-Eleven lawyer JAMES WHITEHOUSE clumsily cross-examined St. Augustine Planning and Zoning Director MARK KNIGHT, with a mocking hauteur, the stuff of lawyer jokes, as if in self-parody.

WHITEHOUSE called City Planning and Zoning Director Mark Knght for a whiny, angry cross-examination. It was unworthy of a first year law student. It was conducted as if cross-examination were an examination by an angry, cross attorney. Questioned by 7-Eleven's inept corporate mouthpiece, Mr. Knight remained unflappable, respectful, poised and responsive.

WHITEHOUSE scored no point with his attempt to argue with Mr. Knight that 7-ELEVEN was somehow discriminated against compared to other commercial properties along San Marco Avenue (none of which have twelve-gasoline pump.

Full disclosure: I was cross-examined in 2006 during a city hearing on a water bill matter by Mr. WHITEHOUSE, with some twelve city officials crowded into a small room in a vain attempt to intimidate us. At that hearing, Mr. WHITEHOUSE was no gentlemen and no scholar, either, with the same threatening tone as he brandished with Mr. Knight. He evidently hasn't learned a thing in eight years about how to cross-examine a wutness. His hostility comes across as bullying, and no one likes a bully.

WHITEHOUSE muttered under his breath while I testified, and I turned around and asked him not to speak while I was speaking. I pointed out that GEORGE McCLURE had apologized to lying to City Commissioners, and that WHITEHOUSE should apologize for lying about the sidewalks

This time, understandably, at this hearing WHITEHOUSE begged off asking me any questions, and asked none of the other eighteen hearing witnesses (all but one of whom testified that 7-Eleven would be a public nuisance).

WHITEHOUSE had no rebuttal for any of the testimony of eighteen witnesses, on issues such as the existence of a sidewalk he denied existed, or the deaf and blind pedestrians who walk on those sidewalks, or the future fatalities from blocked ambulances and fire trucks and police cars.

Finally, WHITEHOUSE was told to wrap it up. At least six times, a sad JAMES GEORGE WHITEHOUSE said he was wrapping up, but WHITEHOUSE continued yammering. It was a pitiful performance.

The audience response to WHITEHOUSE's long speechifying vaguely reminded me of the too-long speech Bill Clinton gave to the 1988 Democratic National Convention, nominating Michael Dukakis for President, the biggest applause line of which was “In conclusion.”

But make no mistake: JAMES GEORGE WHITEHOUSE is no Bill Clinton. (I've heard Bill Clinton speak before, in 1988 at our Georgetown University School of Foreign Service reunion, at the West Palm Beach Airport in 1996, at the Association of Trial Lawyers of America annual meeting in Chicago in 2000, and here in St. Augustine in 2012. I've seen heard Bill Clinton. And JAMES WHITEHOUSE is no Bill Clinton. He's just long-winded and morally obtuse about right and wrong.)

Humorless, stone-faced, snippy, sniping 7-Eleven lawyer JAMES WHITEHOUSE seemed to have a sense of 1% entitlement.

JAMES GEORGE WHITEHOUSE had a chip on his shoulder, as if he was entitled to special treatment as a former Assistant City Attorney for the City of St. Augustine, former Assistant County Attorney, a lawyer in St. JOHNS LAE GROUP.
ST. JOHNS LAW GROUP, which advertises its bankruptcy practice on billboards, was founded by DOUGLAS NELSON BURNETT, the favored son of the former commanding general of the St. Augustine-headquartered Florida National Guard, DOUGLAS BURNETT.
Absent was firm principal DOUGLAS NELSON BURNETT, a longtime public supporter of embattled St. Johns County Sheriff DAVID SHOAR, who championed SHOAR's election in 2004. DOUGLAS NELSON BURNETT is a former Assistant State's Attorney and Assistant St. Johns County Attorney; he is now the deeply conflicted part-time attorney for the City of St. Augustine Beach and the St. Augustine Airport Authority while also representing developers before county boards and the City of St. Augustine).

Dissembling 7-Eleven lawyer JAMES WHITEHOUSE attempted to argue legislative history, pf the Entry Corridor Guidelines, which are unambiguous as if the plain meaning of the ordinance could somehow be impeached by talking about what led to its enactment.

WHITEHOUSE ignored the points I made in my testimony, including the fact that in statutory construction under Florida and federal law, the "specific controls over the general" and the "most recent enactment controls over the older enactment," which means that the city's 2003 Entry Corridor Guidelines trump the earlier 1975 zoning code

7-Eleven lawyer WHITEHOUSE seemed to imply that there was state preemption (there is not). WHITEHOUSE stammered and said “umm” and “uhh” at least 45 times that I counted. His opening argument and testimony consumed an entire hour, as indulgent and patient HARB members listened, then finally asked probing questions that skewered his arguments. WHITEHOUSE did not respond well at all.

7-Eleven lawyer WHITEHOUSE's corporate lackey advocacy was hardly spellbinding. However, it typifies the genre of flummery, dupery and nincompoopery (call it FDN) emitted by maladroit and deceptive developer lawyers in St. Augustine and St. Johns County.

Such FDN arguments often won the day under the regime of corrupt St. Augustine City Manager WILLIAM B. HARRISS, for whom the witless WHITEHOUSE was once a legal hey-boy, writing memoranda on such subjects as cable television regulation that resulted in our City being screwed, blued and tattooed by the likes of COMCAST and TIME-WARNER. (Read Whitehouse's city memos for yourself – he is no legal scholar and expressly gave no policy advice, knowing HARRISS was in bed with the cable companies anyway).

HARB member Antoinette Wallace pointedly asked WHITEHOUSE whether the opinion of the Florida DOT in an E-mail constituted evidence of any official action by FDOT. WHITEHOUSE bobbed and weaved – of course, t was not a final decision, and the HARB board members noted that DOT is supposed to defer to local preferences on safety issues involving cars and curb cuts anyway.

HARB Chairman Leonard Weeks, former Mayor of St. Augustine, noted that in his youth, a gasoline station was one or two pumps, not twelve.

In the end, it was not even close, factually or legally.
7-Eleven did not meet its burden of proof. Neighbors testified beyond cavil or peradventure that the 7-Eleven would be a disaster, violate the Entry Corridor Guidelines, and burden their rights as citizens, pedestrians, motorists and property owners.

Testifying without being sworn, eliciting hearsay testimony from an expert for whom a proper foundation was not laid, pettifogging 7-Eleven lawyer JAMES WHITEHOUSE repeatedly identified himself as a former St. Augustine Assistant City Attorney. It did not help.

None of it entitled 7-Eleven to any relief. The shocking thing is that such a large corporation, or its putative potential franchisee, would hire such a crabby lawyer, or any lawyer at all, to attempt to “fix” a zoning case that was correctly decided, in public, on television, in full view of everyone who loves our Nation's Oldest City.

The technical term for that its “chutzpa.”

Four members of the Historic Architecture Review Board deliberately wisely, and gave their verdict. No 7-Eleven at May and San Marco.

The packed Commission meeting room audience of some 75 citizens gave a respectful standing ovation.

Our City of St. Augustine is transforming itself before our eyes.
Activists deserve credit.

When corporate lapdog WILLIAM B. HARRISS was St. Augustine City Manager, they might have given 7-Eleven everything it asked for, with a few free tickets to the Noche de Gala (see below) thrown in as lagniappes.

Gracious as ever, HARB Chairman Leonard Weeks told WHITEHOUSE he had done a good job representing his client.

When it was over, I personally thanked Mr. Weeks and two other HARB board members, one of whom responded, “All we did was apply the law to the facts,” to which I responded, “That works for me.”

Such was not always the case in St. Augustine, which Rev. Dr. Marin Luther King, Jr. once called the “most lawless” city in America, and which tyrannical city managers like WILLIAM POMAR and WILLIAM B. HARRISS once ran as their fiefs, as Republican lords of all they surveyed. (POMAR once even put a child's cardboard Burger King crown on his head at a City Commission meeting).

After the meeting, JAMES WHITEHOUSE spun the St. Augustine Record reporter with whistpered sweet nothings. WHITEHOUSE said nothing to me or any of the neighborhood residents and local activists. Then, in the courtyard outside the Commission meeting room at City Hall/Lightner Museum, the lying 7-Eleven lawyer, JAMES WHITEHOUSE, and his small, unhappy, glowering entourage of 7-Eleven hired guns and lobbyists planned their next move.

Justice was dpne, so they'll undoubtedly appeal immediately, first to the St. Augustine City Commission. There, the ambit of their arguments will be limited to the pitiful record of hearsay, incompetent, inadmissible “evidence” that they so ineptly put before the HARB.

Spinning on its Facebook page, constituting questionable attorney advertising, ST. JOHNS LAW GROUP stated, “James Whitehouse was in the news representing 7-Eleven, seeking approval for a new location in St. Augustine.” And on the next morning, Friday, February 21, 2014 at 4:16 AM, some unnamed narcissist at the ST. JOHNS LAW GROUP actually posted, "Praise from the Historic Architectural Review Boad for attorney James Whitehouse of St. Johns Law Group. More coverage of the St. Augustine 7-Eleven project in the Record." The Facebook entry stated that "James Whitehouse and 8 others like this," to which "Stacy Nowlin" responded, "Awesome!"

Meanwhile, the “objective” St. Augustine Record article spun the story as one might expect from a newspaper that caters to developers, even those caterwauling about their supposed right to ruin our historic city. The St. Augustine Record took the faux Fox News approach if Historic City News (published by Sheriff DAVIS SHOAR's 2004 fundraising bagman, MICHAEL GOLD), of ignoring the obvious – what 7-Eleven wanted was indecent, should never be allowed, and is beneath the grace and dignity of an historic city. If the St. Augustine Record had a spinal and testicular implant, it would have campaigned against the 7-Eleven. Obviously expecting advertising, the Record showed no conscience.

Credit is due to zealous neighborhood activists led by Ms. Melinda Rakoncay, Mr. Matthew Shaffer and former Mayor George Gardner, without whom we would not have Entry Corridor guidelines in our City Code.

Thanks to all who testified, including Ms. Rakoncay, Mr. Shaffer and also including Irene Arriola, Skip Hutton, Randy Moreman, James Carnes, Judith Seraphin, Bill Coleman, Celeste Carr, Debbie Sauls, Corinne White, Nancy Barnes Hubert, Dan Dinsmore and Jay Joubert, et al. Thanks to all who attended, watched, signed e-mails and sent petitions – thanks to our entire City and County for just saying “no” to 7-Eleven, a deeply insensitive Japanese multinational corporation that operates more than 50,000 convenience store gasoline stations world wide. See “Fun Facts” below.

Mr. Joubert said “St. Augustine is a national treasure” and proposed purchase of the land for a park. “I see a park there,” he said. I agree.

One “fun fact”: it may be an unfair and deceptive trade practice in violation of Section 5 of the Federal Trade Commission Act for 7-Eleven to argue that there is no sidewalk when everyone can see it today.

Another “fun fact”: 7-Eleven is owned by a Japanese multinational corporation (acquired n bankruptcy in 1991 by a group of Japanese 7-Eleven franchisees.

Our Ambassador to Japan is Caroline Kennedy, whose father was President John F. Kennedy.

If 7-Eleven pursues its frivolous appeal any further, it will be looking at an international incident – demanding to put the lives of deaf and blind people and adults and citizens in our Nation's Oldest City at risk with a gasoline station at the wrong place at the wrong time: on the eve of our City's 450th anniversary.

Does 7-Eleven want to invite a national consumer boycott by historic preservationsts? Does 7-Eleven reckon itself above the law?

Does 7-Eleven want the contribution of the Empire of Japan to the St. Augustine 450h celebration to be a traffic standstill, deaths, and destruction of our Nation's Oldest City? To sell gasoline? That is obscene.

You tell me, 7-Eleven: what's it going to be? You will lose in the City of St. Augusitne Ciy Commission, you will lose in Circuit Court, you will lose in the Florida Aourt of Appeals, you will lose in the Florida Supreme Court and the Supreme Court will not grant you certiorari. You might as well throw in the towel, NOW, like those unfortunate young businessmen who made the mistake of hiring fortunate son DOUGLAS NELSON BURNETT and the St. JOHNS LAW GROUP to file another meritless appeal on their attempt to put a hot air balloon on permanent display in our Nation's Oldest City. BURNETT should have advised his clients to save their money, just as he should have advised 7-Eleven. Instead, he takes money for meritless appeals, wasting officials' and citizens' time with bad legal advice.

BURNETT should have advised 7-Eleven and its franchisee, in the immortal words of the late Republican corporate lawyer and Secretary of War and Secretary of State Elihu Root, whose wisest aedvice for his corporate clients was often: "You're damned fools, and you should stop!"

No one has any problem with gasoline stations. There is room for more on U.S. 1, SR 312, SR 207, and elsewhere Just not in our historic area, thank you!

At tomorrow night's City Commission meeting, there will be a first reading on a proposed ordinance on gasoline stations on entry corridors. It must be amended to ban gasoline stations on San Marco Avenue. Period.

Then we're done.

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