Wednesday, August 14, 2019

KELLY MATHIS loses appeal on Stewart's Market on procedural grounds

Attorney KELLY MATHIS missed a deadline.  He did not show up at City Commission,, but instead sent an associate who was unsure of herself and did not make the Due Process argument that he was presumably hired to make. 

Result: Stewart's Market was wrongfully denied a hearing in front of St. Augustine City Commission on an Arc Ministries school zoning matter that could effect its ability to sell alcoholic beverages.

Prediction: Lawsuit and remand for City Commission to do its job, without fear or favor.

The only untimely filing was of a transcript of the PZB meeting.  The City's staff recommended rejection because the transcript was untimely. 

I spoke in favor of hearing the appeal.  

I agreed with Mayor Tracy Upchurch, and vice versa.  

There is a public policy in favor of cases being decided on there merits.

To my knowledge, only in St. Augustine must a party opposing an itty-bitty city's PZB decision "bring extra money" to buy a transcript, within 30 days of a PZB decision, it turns out.

This is administrative law run riot.   It stems from City ordinances intended to discourage activists from appealing erroneous zoning matters.  

Sit up straight and pay attention, dear reader.  

First the City enacted the Diane Mills ordinance, requiring an early determination on whether the City will even let you appeal from an adverse ruling to Commission.  This ordinance owed its excruciating etiology to one ROBERT MICHAEL GRAUBARD, boyfriend of Vice Mayor SUSAN BURK.

Fast forward to my challenges in 2014 & 2015 to DAVID BARTON CORNEAL and St. Paul A.M.E. Rev. RONALD RAWLS, Jr. demolition permits for historic Carpenter's House and Echo House, respectively.

In 2015, Vice Mayor LEANNA SOPHIA AMARU, FREEMAN, a lawyer, won Commission approval as an ordinance her quaint notion that a verbatim transcript of proceedings is necessary on a simple appeal from a lower board decision to City Commission, when on-demand video is available.

In its first application of the 2015 ordinance based on lack of a timely transcript, the City Commission, 4-1 (Mayor Tracy Upchurch, dissenting) showed its lack of favor for any underdog, its lack of appreciation of Due Process and First Amendment appeal rights, and its willingness to turn a grudge into a law, and to turn that law into a lawsuit.

The Stuart's Market owner timely filed an appeal, paperwork and fee, but was a few days late.  If I were the judge I would remand this case for appeal hearing to the City of St. Augustine, and tax costs against the City.

The City's ever-vigilant former Mayor, George R. Gardner, recently celebrated his 82nd birthday, and wrote this article in his St. Augustine Report newsletter August 24, 2019:

'The rule's the rule,'
board denies appeal
   In a "legal model" debate between attorneys Mayor Tracy Upchurch and Vice Mayor Leanna Freeman, the mayor's argument fell short as the City Commission Monday voted 4-1 to deny legal sufficiency of  an appeal of a Planning and Zoning Board decision.
   Commissioners decided the application challenging the plan board's approval of a use as a school for Arc Youth Ministries at 307 Anastasia Boulevard "Lacks legal sufficiency due to the untimely filing of the transcript."
   A verbatim transcript is part of the requirements to make an appeal, and that transcript arrived five days late. 
   Luther Stewart filed for appeal arguing school use at 307 Anastasia Boulevard jeopardizes the sale of alcohol at his property at 311 Anastasia Boulevard. 
   "For 30 years the owners and/or tenants of this property have sold and/or served alcoholic beverages from this location as a licensed alcoholic beverage establishment" he writes in his appeal. 
   "Both Florida law and the municipal code of the City of St. Augustine prohibit the operation of an alcoholic beverage establishment ... within 500 feet of the real property that comprises a school."
   Commissioner Freeman argued that in court deadlines have to be met. Upchurch countered, "I am loath to dismiss the appeal; nobody is harmed by granting him his right to appeal."
   Commissioner John Valdes disagreed with the 30-day requirement after a board decision to provide a transcript and suggested that might be changed to 60 days, but for now "The rule's the rule." He said.

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