RECORD EDITORIAL | Santa Maria: A slippery slope. (SAR)

1. Somewhat disjointed editorial, which reads as if it were written by the Opinion Editor after a long lunch, perhaps with Virginia Whetstone, et ux, Bruce Maguire, entitled rich folks who view the government as an annex to their own affairs.  The Whetstones are cognitive misers who have been throwing their weight around our town for too long.  ((In 1994, Virginia Whetstone said all St. George Street businesses should close at 5 PM because of "crime." Today, the main crimes on St. George Street would appear to be business crimes, e.g., wage theft by certain errant employers, paying workers low wages, sometimes under the table.)

2. Yes, I agree that the matter should be heard by the Planning and Zoning Board. I strongly agree with the editorial on that point.

3.  I strongly believe that the White family runs good restaurants and has been ill-treated by bullies, toadies and bigots in City Hall.  (Fortunately, the Assistant City Manager, Timothy J. Burchfield, is retiring Monday night, October 14, 2019).

4. The Whites' civil and constitutional rights were probably violated because they sued and won a lawsuit in June 2005 against the Cityover Historical Architectural Review Board members testifying before themselves in a case involving windows at a property on Marine Street.

5. Last year, the Whites rightly fired the 68-lawyer ROGERS TOWERS law firm.  Instead,they hired Robert Lester McLeod, II, a St. Augustine plaintiff's tort lawyer in a three person firm, with some recent civil rights litigation experience.

6. The McLeod firm's impressive historic research on 100 years of use of the Santa Maria property as a restaurant and bar irrefragably establishes the case for "vested rights."

7. Mr. McLeod's firm has assembled maps, documents and photographic evidence neglected by a fancy-bears, snooty 68-lawyer Jacksonville corporate law firm, ROGERS TOWERS, whose partner, Ellen Avery-Smith, committed possible legal malpractice in under-representing the Whites in 2018.  Ms. Avery-Smith made a pig's breakfast of her two feeble presentations to City Commission. (Her partners include louche lobbyists like former Jacksonville Mayor John Delaney and Thomas Martin Fiorentino, Jr. ROGERS TOWERS law firm often exhibits blurred ethical lines. That is established by its apparent longtime practice of asking its clients to sign engagement letters waiving all conflicts of interest against other clients, whose identities are not disclosed in such agreements.  Ms. Avery-Smith once even brazenly asked our Anastasia Mosquito Control District of St. Johns County to sign such a blatantly illegal contract of adhesion. AMCD declined and hired another firm.

8. Mr. McLeod is not )yet) threatening a 42 U.S.C. 1983 and 42 U.S.C. 1985 civil rights lawsuit. But under a United States Supreme Court decision earlier this year, a property owner can proceed directly to federal court with a Fifth Amendment takings case and is no longer required to go to state court. See Knick v. Township of Scott, Pennsylvania,  No. 17-647  (2019), overruling Williamson County Regional Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985). 

9. Mr. McLeod may be understably reluctant to go to federal court with a civil right case right now.  He lost spectacularly in his last such effort.  U.S. District Court Judge Brian J. Davis dismissed a tenuous and retaliatory lawsuit on March 30, 2018 (Good Friday/Passover). Mr. McLeod filed the lawsuit against an ethical Florida Department of Law Enforcement Special Agent, Rusty Ray Rodgers, for alleged "civil rights violations" in the investigation of the September 2, 2010 homicide of Ms. Michelle O'Connell in the home of Mr. McLeod's client, St. Johns County Sheriff's Deputy Jeremy Banks.

10. Mr. McLeod needs to be directed to number the pages of his exhibits for easy reference, to provide a detailed table of contents for the exhibits, and to use exhibit labels. Poring through hundreds of pages of historic documents without page numbers is like being asked to find a needle in a haystack.

11. How are Mayor Tracy Upchurch, Vice Mayor Leanna Sopha Amaru Freeman, and Commissioners Nancy Sikes-Kline, Roxanne Horvath and John Otha Valdes to proceed?  Refer the matter to PZB, with instructions,

12. How can these five busy, part-time elected officials possibly ask intelligent questions about this mountain of persuasive evidence without page exhibit numbers?

13. Subjecting Commissioners to that disorganized pile of exhibits without page numbers is Bush League, even by St. Augustine standards.  It is sloppy, disrespectful and is "cruel and unusual punishment," by analogy the the Eighth Amendment to the United States Constitution. In the future, Commission needs to adopt a rule.  It already has one requiring transcripts, an extravagance in a small town.  It should certainly require that exhibit pages be numbered and indexed.  Now.

14. Commissioners should refer the Whites' vested rights application to our St. Augustine City Planning and Zoning Board for a hearing, with instructions to provide a detailedtable of contents for exhibits, number exhibit pages, use exhibit labels and direct PZB to hear the evidence and make a recommendation, to resolve this matter soon.  It would indeed be a "slippery slope" and a bad precedent for the Commission to usurp the functions of its Planning and Zoning Board.

15. Granting the Whites' request without a stop at PZB would spay and neuter PZB. Next time, it could be ex-Mayor LEN WEEKS, ex-Mayor JOE BOLES, LOUIS JOHN ARBIZZANI, KANTI PATEL, or VIRGINIA WHETSTONE,  et ux, Bruce Maguire, who fancy themselves Republican Lords of All They Survey, and would be requesting that Commission arrogate to itself a function that belongs to PZB in the first instance.  

16. Commissioners, please refer it to PZB where it belongs.

From the St. Augustine Record:


Opinion
RECORD EDITORIAL | Santa Maria: A slippery slope


Posted Oct 12, 2019 at 7:02 PM
The on-again, off-again permitting for the resurgence of the old Santa Maria restaurant on the historic bayfront is, apparently, on again.

The White family will come back to St. Augustine Commissioners Monday night seeking to pen a new pact with the city to get the demolition and construction project back on track.

The family purchased the property in 2015. While the history of the tiff with the city is complicated, all that really matters at this point is what’s occurring Monday.

Basically, the owners initially sought a vesting agreement with the City. That’s a request for the City to agree the owner has had, and continues to have, vested rights, based on its former use parameters — some decades old.

That deal was initially vetoed by the City Commission, and rightly so. It was vague and much too broad in scope. The City also fretted that it bypassed a critical step in permitting — the Planning and Zoning Board.

Months later, the White family returned to the city with a different — a Development Agreement. That was more point-specific than the vesting pact, on what it expected. But it was still considered “too big a bite,” for the Commissions according to City Attorney Isabelle Lopez. And, it still sought to bypass PZB scrutiny. It sunk as well.

The family could also request a Planned Unit Development, which is a similar step. It has not.

So what’s occurring Monday is a “Vesting Agreement Redux” — slightly modified from the first. But it also modifies some compromise spelled out by the White family in the similarly ill-fated Development Agreement.

What the Santa Maria owners seek from the City this week includes:


• Use by exception: Agreement the building has been historically used as a restaurant.

• Vertical expansion: The right to expand the building to two stories and add certain catwalks and boardwalks. The Historic Architecture Review Board already has given the family its OK to demolish the historic-ish structure and build the two-story restaurant.

This is, in practice, is the first of a three-step that applies to the city. HARB gives the nod for demolition and the new “look” of the business. Then the Planning and Zoning Board looks at land (in this case water) use; then says “yea” or “nay” to certain aspects of the project. The final word is then given by the City Commission — and it is under no obligation to go with all or any HARB or PZB recommendations.

• Intensification of use: The property is currently vested (protected) from any current land development requirements in terms of lot size, coverage, setbacks, etc. This would seem to allow a sort of carte blanche in design and scope.

• Seating: The property owner is vested in the previous 198 seats.

• Utility connections: The owner will not be required to pay utility connections for 198 seats.


• Parking: No parking will be required for the 198 seats because those will be vested as well. The White family agrees that it will provide 26 parking spots at its O.C. White’s location dedicated to the new restaurant to cover an additional 102 seats it wants to add — an expansion to 300 seats.


• Signage: The restaurant wants its former historic-ish signage vested in terms of location, size and illumination. That’s means a neon-lit sign, and larger than presently allowed in that part of town.

• Utility connections: Owner shall not be required to pay connection fees for the 198 vested seats.

City Manager John Regan and Jennifer White have met subsequent to the last breakdown of talks and, Regan says, may have cleared some obstacles that could allow some compromise.

It is not clear whether John White or the City Commissioners will agree with Regan’s recommendations. And it’s likely one, the other or both will not.

First, it is good there has been back-and-forth between the city management and the White family. The property is a part of our city and stands prominently on the historic bayfront where style and design are at a premium. We don’t need a dilapidated building falling into the water.

The White family has demonstrated through its existing businesses downtown a dedication to quality throughout.

The bottom line, though, is the owners’ early and likely continuing stance they do the project outside “their way” —outside the normal oversight and land use parameters so carefully set in our historic district by decades of trial and error.


The City Commission should be careful to protect that precedent. What this looks like is a pact that will set aside certain government prerogatives, yet allow the PZB to have oversight of other parts of the plan.

But it still leaves serious questions unanswered about ownership of the submerged lands below the old Santa Maria. Should the Whites pursue a lawsuit to claim them as private property and prevail, all hell would break loose up and down the Matanzas River.

A judge previously ruled for the city in a similar tiff with local businesswoman Virginia Whetstone a couple years back. But courts are unpredictable under the best circumstances.

From where we sit, any give-and-take should be predicated on a legal understanding the city owns the property — and a subsequent lease arrangement to the restaurant.

It’s a slippery slope for the Commission. How much is too much? And how do you explain to the next owner down the line that the deal struck with the White family isn’t precedent-setting? Or how do you set a precedent that the PZB can be left out of all or part of the legal process?

Disagreeing with the PZB is one thing. Disavowing it is another, altogether.