Wednesday, May 27, 2015

Neglected Infrastructure on Trial -- Administrative Law Judge Hears Challenge to City's Neglected Infrastructure, Involving Lighthouse Zoning Change

City Manager JOHN PATRICK REGAN, P.E. with sewage "pipe" leaking semi-treated sewage effluent into San Sebastian and Matanzas Rivers, 2009
(Then-City Manager WILLIAM BARRY HARRISS violated Sunshine laws by "polling" Commissioners for five years, avoiding public discussion of yet another example of City of St. Augustine lawbreaking).

Rev. Dr. Martin Luther King, Jr. once called St. Augustine "the most lawless city in America."

Now an independent Administrative Law Judge from the Department of Administrative Hearings (DOAH) with the State of Florida will decide whether the City of St. Augustine favored the Lighthouse and Museum with zoning changes inconsistent with the Comprehensive Plan. It is the second most visited spot in St. Johns County (after the Castillo), with a quarter million visitors annually. Neighbors are afraid of more development and threats to their safety. They want sewers and sidewalks they City of St. Augustine has never provided their neighborhood, bordering Salt Run, a Class II waterway that produces oysters and hosts the St. Augustine Yacht Club on leased city property that was once their Salt Run Community Center and a neighborhood breakfast and lunch restaurant.

Lighthouse Park neighborhood resident Edward Ruben Anderson and his wife were denied sewer service for their home on Magnolia, with a letter saying service was "not available" by the City of St. Augustine.

City of St. Augustine Public Works Director MARTHA GRAHAM admitted today to Mr. Anderson's cross-examination question that the City has a policy of allowing developers to build new homes and hook up to sewer service without affording homeowners with septic tanks the right to hook up their homes first. Lighthouse Park and West Augustine neighborhoods largely lack sewer service, and there are no plans to do anything, although the City's Comprehensive Plan vaguely promises to do something by the year 2030.

The hearing took three hours and thirty minutes, of which only some 50 minutes was Mr. Anderson's case-in-chief. Mr. Anderson testified and presented exhibits establishing that the City sewage system was "at capacity," and that the sewer plant was located on a flood zone and could not be expanded. Mr. Anderson noted that the City made contrary claims in its legal prehearing statement defending its findings granting the Lighthouse's zoning change, asking the Administrative Law Judge to resolve the factual question.

Mr. Anderson testified that the zoning changes for the Lighthouse increased density and intensity without complying with Comprehensive Plan requirements for sanitary sewers, with all of the Lighthouse Park neighborhood's homes using septic tanks, which pollute Salt Run, from which oysters are harvested. City sewage capacity of 4.9 million gallons per day is already "at the breaking point," Mr. Anderson said, noting recent spills (which the City blamed on rain, power outage and human error). Mr. Anderson quoted March 12, 2013 Code Enforcement testimony by Deputy Public Works Director Todd Grant, establishing that there was no sewer capacity to handle the Lighthouse Day Care Center. City testimony admitted that the Lighthouse has two septic tanks serving the Keeper's House and another location, as well as sewer service.

Mr. Anderson testified that adding 24 hour operations and new uses, such as weddings and events, to the Lighthouse would add to the sewage crisis, decreasing the quality of life and increasing water pollution and congestion in the Lighthouse Park and Salt Run area. This poses potential damage to our City's and State's reputation and to the tourism industry and real estate values, Mr. Anderson said.

The Administrative Law Judge, recognizing that Mr. Anderson's concerns were of general applicability throughout the Nation's Oldest City, eloquently stated, "you could have taken any permit brought by the City and brought this case," stating things are generally "worse." Mr. Anderson readily agreed. Mr. Anderson pointed out that new demands on the City's at-risk sewer system were posed by massive expansion at Northrop Grumman (1400 employees), Flagler Crossing (which claims 888 residential units on its website), and the massive Shipyard development, with retail and office space, boat storage and boardwalk on the San Sebastian River.

Mr. Anderson testified that the Lighthouse has been converted from Government Use to private, with loss of recreational access to formerly public lands without any increased benefit to the public. As the City's public hearings on the change established, non-paying residents are no longer allowed in former county-owned lands, including the dune and hammock area, which now bear unfriendly, menacing signs. Mr. Anderson testified about school children, among them his own, currently walking on roads and lacking sidewalks and other amenities.

The four witnesses were Mr. Anderson, fired former City Planning and Zoning Director MARK KNIGHT, City Public Works Director MARTHA GRAHAM, City Planning and Building Director DAVID DOUGLAS BIRCHIM, and Lighthouse Director Kathy Fleming. Counsel were Sidney Franklyn Ansbacher for the Lighthouse and Ralf Brookes for the City of St. Augustine. Trial was before Administrative Law Judge Bram Canter of Tallahassee, who will write an appealable order based upon written briefs of the parties citing to the transcript and applicable laws.

As soon as Mr. Anderson testified that he regulates sewage and sanitation for the State of Florida, fired former City Planning and Director KNIGHT's eyebrows went up, and except for smoke breaks, he paid rapt attention throughout. (KNIGHT's demeanor is normally languid and lizard-like, as if he had not a care in the world. Likewise, KNIGHT's hand-picked successor, DAVID BIRCHIM, blushed and was red-faced from the beginning of the hearing when Anderson testified with mastery of the subject (even the top of BIRCHIM's bald head turned red).

In defense counsel's best call of the day, there was no cross-examination of Mr. Anderson. Not a single question.

St. Johns County owned the Lighthouse property and leased it, until the late land use lawyer GEORGE MORRIS McCLURE (Lighthouse attorney and Board member) engineered a sweet deal where the County gave up ownership for a mere $200,000. (More privatization of the commons).

When the Lighthouse's and the City's turn came, they dropped the ball and ever required. The City "deferred" to the applicant Lighthouse, whose lawyer Ansbacher quickly succeeded in boring the ALJ, who put his hand on his head and finally interrupted, repeatedly attempting to focus the respondents on relevant evidence responsive to Mr. Anderson's concerns. After only 22 minutes of the respondent's putative "defense," emitting every known fact about lighthouse history and construction, the ALJ asked incredulously, "Wait a second, why do we need to know this?" The ALJ cut off testimony by KNIGHT that was repetitive of Ms. Fleming's testimony on the amendment, calling it "redundant."

When Ms. Fleming testified that historic Lighthouse reconstruction after a hurricane could take "years," the ALJ questioned the relevance, stating he understood it took "a long time." The ALJ twice said the respondents were emitting non sequiturs, or "red herrings," stating to KNIGHT that "the City of St. Augustine wouldn't let the Lighthouse rebuild if there were a hurricane" without the questioned Comprehensive Plan amendment? KNIGHT was flummoxed, as his patent-pending parade-of-horribles arguments (learned from years under tutelage of the late GEORGE MORRIS McCLURE) was hoist on its own petard.

Toward the end of the hearing, after some 2.5 hours of wandering, waddling and weird defense testimony, the ALJ said, "You should be addressing the points that [Mr. Anderson] made."

DAVID DOUGLAS BIRCHIM has had only one employer since he received his Planning degree from the University of Tennessee 17.5 years ago -- the City of St. Augustine. BIRCHIM does not handle questioning very well. BIRCHIM was angry and frustrated and unresponsive when Mr. Anderson asked him on cross-examination when boat-building becomes "light industrial," banned next to schools, resembling a robot when he gave a rote answer about Henry Ford and the industrial revolution.

Likewise, Public Works Director MARTHA GRAHAM, a City employee since 2008, was clueless ineffectual and inarticulate when asked how many homes in Lighthouse Park had septic tanks and no sewer service ("I don't know the figures," with City counsel not offering to provide them. (I requested this information from the City a year ago; I am still waiting and I suppose the ALJ would have liked to have known, too).

City Manager JOHN PATRICK REGAN, P.E. (photo above with sample of neglected infrastructure) never appeared in the room, even as spectator.

After a short off-the-record consultant with Messrs. Anderson, Brookes and Ansbacher, the ALJ provided for proposed orders to be provided by the parties fifteen days after they receive the transcript.

Observers believe that the case of Anderson v. City of St. Augustine points the way to:
1. Stop overdevelopment in its tracks;
2. Force the City to provide sewer and sidewalks to neglected neighborhoods like Lighthouse Park and West Augustine;
3. Start complying with its 14th Amendment duty to provide equal services;
4. Stop destroying our history, nature and quality of life in the name of greed; and
5. Adoption of the St. Augustine National Historical Park and National Seashore to fund badly needed City services, while preserving and protecting our City's and area's history and nature forever.

Watching in the back of the room were several worried developer lawyers, while KNIGHT sat at a City table reserved for the Chief of Police between smoke breaks. For a time, earlier, longtime City Planning and Zoning Board and St. Augustine Port and Waterway Commission member Carl Blow watched from the same table as sewage pollution in Salt Run was discussed by Mr. Anderson.

Never mentioned was the Fourteenth Amendment Equal Protection clause. That's not traditionally an issue before Administrative Law Judges, but the City of St. Augustine could be sued for violations by people whose homes are not connected to sewers, because the City favors developers over residents.

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