Thursday, April 28, 2016

Record Editorial Wrong on 7-ELEVEN Lawsuit?

The St. Augustine Record editorial board reckons that the City of St. Augustine would have lost in Circuit Court on 7-Eleven's lawsuit about the denial of zoning for the May & San Marco intersection. The Record has asserted no facts to back up this errant opinion. Having heard the testimony and spoken before PZB, I reckon the Record is wrong (again). Its earlier opinions on the subject were the sequelae of talking to attorney JAMES GEORGE WHITEHOUSE a lawyer with the law firm headed by the son of the former commanding general of the Florida National Guard.  This opinion was rooted in a hireling of DOUGLAS NELSON BURNETT's ST. JOHNS LAW GROUP, counsel for the rich and greedy, including 7-Eleven.  Nothing more, it wold appear.

To shed light on the subject, I have earlier today requested the City provide the transcript of the Shade Meetings on the subject. More later.

Here's the Record's editorial in quo:

Editorial: At San Marco and May Street, a little loss is a big gain
Posted: April 26, 2016 - 11:41pm | Updated: April 27, 2016 - 12:01am

There are a lot of eyes on the May Street/San Marco Avenue intersection these days. Last night the Florida Department of Transportation hosted a community meeting about the future of the intersection.

Earlier in the week the city announced it’s looking into changing the ingress and egress elements of the main branch library and Davenport Park: moving the entrance away from West San Carlos Avenue to U.S. 1. That move certainly seems like it would help traffic flow at the May/San Marco light. But, like most engineering efforts, there could very well be a downside to traffic flow on U.S. 1.

The intersection is also the impetus of an effort by Nelmar Terrace residents to persuade the city to close off side streets to traffic off May Street, because so many motorists are using the neighborhood streets to circumvent the backups at that light.

The city has now signed the contract for the FDOT to purchase almost all of the former 7-Eleven property. In May 2015, the city paid $1.4-plus million for the property. The city was heaped with praise and buried in complaints about the purchase, depending upon residents’ philosophical bent and, more to the point, geographical proximity to that traffic light.

At the time, the city hoped that the land, or part of it, might be bought by the FDOT, but the agency spokesperson told The Record then that it had no plans to purchase any of the land, and no money was allocated in its construction budget to do so.

City Manager John Regan called after we published the comment in an editorial that week and insisted that the spokesperson was missing information above her pay grade. Talks, he said, were underway on some sort of land deal.

Guess he was right. The FDOT has now signed the contract and paid about 1.1 million for the land. The city still owns a small piece of the property on which an older home is located, which it will sell. It may be worth $200,000 tops, when it’s fixed up.

So the bottom line is that the city will be upside down between $200,000 and $300,000 on the deal.

But is it really? No.

First, it never made subsequent sale of the property part of the purchase deal. It was about to lose a court battle with the convenience store giant over its refusal to permit construction. [Ed's note: This opinion is inexplicable.  It once again shows the Record's unadorned opinion on a legal issue, uninformed at best -- if  not prejudiced against the public interest in holding developers accountable -- developers that buy ads. ] 

The only way to keep the property from morphing from a vacant corner with big traffic problems into a 12-pump convenience store/gas station with massive traffic was to buy it.

Regan told us at the time that the city would certainly look at selling to a private buyer, and said there were interested parties. But it’s difficult to see what kind of business could have paid that kind of money and put in a business that didn’t need to drive traffic to the site in order to make it profitable.

We think few buyers would have looked seriously at that piece of land, knowing the potential pushback from the neighbors who battled 7-Eleven tooth and nail. Neither would it seem likely that any serious buyer would consider a site with so many commercial restrictions tied to it. And the city could have, and likely would have, added more in order to protect the entry corridor status of San Marco.

So, taken as a whole, we think the city, the neighbors and the motoring public got lucky with the way things turned out.

The city ends up eating a couple hundred thousand dollars in the deal. But the FDOT’s design options blossomed with the purchase, making much better options available than were being considered with a 7-Eleven mucking up the corner.

All’s well that ends well. That’s what happened here.


Anonymous said...

Of course the City would have lost the lawsuit. You can't issue a permit then just pull it back because the city changed its mind. The question isn't about "if" the City would have lost but rather the dopes issued the permit in the first place.

Had they not issued the permit...yes, I agree the City would (or could) have pervailed in litigation.

Likewise..shame on the local residents for not "following" the issue earlier. I think I remember all the hoopla was AFTER the permit was issued vs when it should have been...BEFORE.

Absolutely the City got a bad deal ( good that the gas station was nixed - bad that it cost us $300,000 solely due to poor planning to start)

Ed Slavin said...

I do not believe the City would have lost the lawsuit. Did you attend any of the hearings? Testify? Read the documents? The Record's opinion is just that -- an opinion.

Anonymous said...

Perhaps I am mistaken because obviously I don't have the facts which you have. I thought the city issued a permit to build 7/11 correct? If yes, it is common sense to expect that the permit issuance immdeiately increased the value of the dusty land..correct?

Likewise the issuance of a permit grants certain "rights" does it not? Did 7/11 do anything to void the permit..did 7/11 come back and ask for any greater "rights" than given by the City? I don't think they did.

Taking away "rights" is always harder and more expensive than is usally the case in granting or withholding rights in the first place.

Go tell your kid he can eat a cookie or get a new fire truck then change your mind a minute later and say no...sure..good luck to you!

My point is no..I'm not happy the City lost a pot of money and I am upset that the City got itself in this position in the first place. The permit should have never been issued..period.

How often does a city with good leaders issue laws, procolmations, grant rights and grant building permits only to turn around a few months later and say oops..stupid us..we made a mistake and didn't really mean to do that.

The city just did it again regarding the Maderia PUD..voted no then oops..whoops..we didn't mean to do that. Luckily their mistake didn't result in paying damages...yet again!

But as stated..perhaps I am wrong and the permit was never issued? You take rights away your going to have to pay so don't issue them in the first place.

Ed Slavin said...

Permt cancelled for eleven (11) different reasons, well-stated by Commissioners after full and fair hearing.

Anonymous said...

Shaver said the big question in the lengthy meeting Thursday was whether the staff issued the building permit in error. Yes, she said. There ya go..did the City issue the permit in error..yes. Shaver said. Notice the wording..error. Errors cost money...errors are not professional now are they? That is my point and you argue apples to oranges.

I respect your opinion but you are not a lawyer nor judge - lawyers decided there was a good chance teh City would loose, hence settling. Perhaps I mistunderstand again...are you saying way to go...yay the City makes dumb errors. Bottomline ( and Shaver's comment supports my point) The permit should have never been second point is commonly accepted...whether it is a corp or a mess up you end up paying the piper. Agree?

Ed Slavin said...

City Commission correctly reversed erroneous granting of permit and would have been upheld on appeal. Which lawyers? As a former practicing lawyer who knows administrative law, I think City would have won. Record editorial unsupported by any legal or factual argument.

Anonymous said...

Ok - fair enough. If you have up to date legal knowledge, researched the issues and attended the legal proceedings and are of the opinion that the City could have won your opinion implies a greater level of concern in that the City either hires fools to represent COSA or there was a back room deal and over a million dollars was improperly paid.

I assumed that 1. The City hired quality lawyers and 2. Those lawyers beleived that there was a high risk of losing and that settlement would be beneficial.

Based on your educated opinion the situation is far worse than what I imagined.Mistakes all around and a million bucks down the drain. Your opinion also implies that the issue of the Record's reporting is far down the list of importance when compared to the damage done by the City to her residents. The Record may have poor reporting but it certainly didn't cause the waste of a million dollars of tax money.

Ed Slavin said...

When the City has been wrong, I would be the first to agree.

Not waste. City would have had to pay more if it sued for eminent domain condemnation. City has been reimbursed most of the money for purchase price by FDOT.

Result: no 7-Eleven. Deterrent effect on bad developments. Empowers neighborhoods to fight corrupt decisions by City Hall. Intersection will be functional, once again, after construction in 2017.

Anonymous said...

I am not trying to beat a dead horse but you are making sense. Maybe I misunderstand?

1. Land goes up for sale
2. 7/11 buys land
3. City royally screws up issues a permit to 7/11 by "mistake"
4. City realizes the "mistake" withdraws permit and gets sued.
5. You claim they maybe..perhaps could have won ..all good to guess but nonetheless even iof teh city had won time was spend all because of #3 above...stupid mistake..
6. Regardless of re-couping part..I stress part of the wasted money the City still looses several hundred thousand dollars. I this is ok with you then why argue over the Record Editoral...who cares right..chicken feed..moot point by your logic win... or settle the outcome is ok by you.

7. What are you talking about when you say the City would have had to sue for eminent domain...why? If they hadn't screwed up and issued the permit in the 1st place there would have been no need for settlement, community empowerment or protests and most importantly NO 7/11!

8. FDOT is doing the road deal not the city and FDOT is big enough to have dealt with buying or suing to seize the land if the road project is worthwhile..NOT THE CITY. But yeah..maybe not once bone heads issued the permit and automatically increased the land value from peanuts to $1.4M.

Perhaps you mean to say ..hooray..PZB wrongly issued a building permit and started a mess. Sorry..we disagree..issuing the permit was a stupid mistake and it was against the neighborhood. Big deal, they fought and made it turn out ok for themselves..THEY SHOULDN'T HAVE HAD TO IN THE FIRST PLACE. ( but yes..activism is good..wasting time fighting when you shouldn't have to is bad..a waste of time which you never get back.

I doubt that many of the protesters would say yippee..because PZB is a bunch of fools, didn't follow rules or normal procedure, didn't listen to us from day 1 ..awesome ..instead of seeing my kids or parents or doing something enjoyable ..wonderful..I got to stand outside with a dumbass sign, raise my blood pressure, attend meetings and get all worked up...hours wasted. Hooray.
If you think this is somehow "good"..I'll wager you will get to have some more fun because PZB is bound to make more stupid mistakes so we all get to waste our time fighting. Great!

Ed Slavin said...

By George, you've got it. If City Planning and Zoning Directors had a spine, permit would not have been issued. But, by God, we won/ All's well that ends well. Intersection will be working efficiently by 2019. Two neighborhoods preserved, again.

Ed Slavin said...

Check land values point.

Anonymous said...

Ok..we agree. End result of no 7/11 ..good! Community involvement...good! Cause root of problem...bad. I also add..if I remember 7/11 bought the land for $700K something, something..had the City had any vision it could have easily bought the land then sold to FDOT..simple, easy and common sense planning which the area lacks big time.

But yeah..good job and kuddos to the protesters..good job to the Mayor in having the guts to undo the bad situation. Plus and minus situation.

Ed Slavin said...

IF BOLES were Mayor, this good result might not have happened. During the re-election campaign, he promised, in writing, on Facebook, that he would always vote against 7-Eleven. This was desperation, attempting to win over votes in Fullerwood and Nelmar Terace neighborhoods.

IF BOLES had been re-elected. 7-Eleven lawyers would have (rightly) demanded his recusal for bias, for taking a publicposition on a matter requiring a quasi-judicial hearing. You can imagine that the egotistical BOLES would NOT have recused himself, resulting in a court striking down the City's effort to revoke the building permit.

Mayor Shaver's cool, calm, kind, patient, dispassionate, fair, quasi-judicial temperament inspired her colleagues to ask the right questions, demand answers, and arrive at the correct legal conclusion.

We are blessed to have elected Mayor Nancy E. Shaver.

Anonymous said...

Amen to that..I agree 100% Hopefully the city council will change flavors this election cycle...elect reps who support the mayor vs petty bickering and nagging her. She needs some time to learn and grow into the job..which she is doing. The next two years should be better yet!