Originally posted Tue, 2009-08-19 23:37 NSBNEWS.net videos by Sera Frederick. The videos above show Andrew Brigham, an attorney for the Anglers defending the city's longstanding lease allowing them exclusive rights to prime riverfront acreage, the second video features outside counsel Scott Glass stating the lease is not valid, but urging the city to renegotiate with the Anglers to avoid litigation, and the third video shows the commission discussion and the 4-1 vote on Aug. 19 to authorize City Attorney Frank Gummey to renegotiate a new lease wih Brigham on behalf of the Anglers club negotiate.
The City Commission voted to negotiate with the Anglers Club after Glass, the outside counsel hired by the city, recommended negotiations over costly litigation, even though it was his legal opinion the lease was not valid. The lone vote against negotiation was Commissioner Randy Richenberg, even though he seconded the motion. Among the 200-plus citizens in the audience was Anglers Club member Adam Barringer, who would become mayor in November. The commission earlier in the year ignored the legal opinion of City Attorney Frank Gummey that the lease was valid, and instead, voted 3-2 with Commissioners Jack Grasty and Jim Hathaway opposed, to hire Glass for $20,000. He would later bill the city for $28,000.
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Editor's Note: Here are two previous stories that highlight the issue:
NSB outside counsel: Yacht Club lease not valid
Posted Fri, 2009-07-17 16:45
NEW SMYRNA BEACH -- An outside counsel hired by the city to review the longstanding lease of prime riverfront land to the New Smyrna Yacht Club concluded the lease signed in 1944 is not valid because the city didn't have the legal authority to enter into such an agreement at the time.
The city didn't have jurisdiction to do so for another 13 years, concluded Scott Glass of the Orlando law firm of Shutts and Bowen, and by then, the city did not ratify the earlier 99-year agreement, making it null and void at that point.
"It appears that under the Florida Constitution of 1885, the City Charter and case law in effect at the time, the City did not have lawful authority to enter into the 1944 lease, nor did it have lawful authority to enter into prior and subsequent leases as hereafter discussed," Glass wrote in a memorandum dated July 10 to New Smyrna Beach city officials.
"The City did not gain clear legal authority to lease public property to a private entity for a private purpose until 1957. Even then, such a lease was required to serve at least some incidental public purpose."
The most telling aspects that may give city officials reason to pause in entering litigation to try and re-take the property are one, that it cannot recoup any lost back taxes, and two, Glass stated: "If this matter ends up being litigated, it will be very expensive for both sides."
Mayor Sally Mackay could not be reached for comment earlier today, but Vice Mayor and Commissioner Jack Grasty did not back down from his stance that going after the Angler's Club would prove to be a protracted and expensive nightmare for the city.
"It's not valid?" Grasty asked. "What would a judge say? I read where it would cost both sides a lot of money. Are we willing to pay for it?"
From Grasty's perspective, the answer is "No." As for claims that the Anglers have discriminated against minorities in its orginal lease, Grasty said he could remember "colored bathrooms everywhere."
Segregation in New Smyrna Beach's schools was practiced well into the 1960s, he pointed out.
Michael Brewer, the attorney for the Angler's could not be reached late this afternoon for comment.
The push for the city to break its $25-a-year lease with the Angler's was spearhaeaded by several city residents earlier this year who questioned the validity of such a lease, led by Bouchelle Island resident William Koleszar who labeled it a "sweetheart deal" that provided privilege for the city's elite and wealthy.
There are some 90 members of the club, including a city fire administrator and a member of he New Smyrna Beach Utilities Club. The Orlando firm's opinion is opposite of that previously expressed by City Attorney Frank Gummey who said the lease was valid. Neither he nor Brewer nor Koleszar could be reached for comment.
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NSB city attorney to meet with attorney for Angler's Club to discuss legality of waterfront lease
Posted Thu, 2009-03-05 23:37
NEW SMYRNA BEACH -- City Attorney Frank Gummey was instructed by the City Commission earlier tonight to meet with the attorney for the Angler's Club to review the private boating entity's lease with the city to ensure it meets all legal requirements and does not discriminate.
Gummey informed the commission he has reviewed the provisions of the 99-year lease signed with the city decades ago to use the municipally-owned waterfront property on the North Causeway for $25 annually, a deal that some have questioned as possibly discriminating against minorities.
"My conclusion is no different than I have previously advised you," he said. "If you are not satisfied with the lease agreement, see if there is an opportunity to discuss your concerns."
And that is exactly what he will do, the commission decided. Critics of the Angler's Club also have questioned whether it is paying its fair share of taxes, especially in current economic times where the city couls use additional revenue.
The lease has been criticized by several residents in recent meetings, especially its membership provisions, which decades ago allowed only white men, 21 or older.
Gummey was quick to point out that even though the discrimination provision has been deleted from the lease, "the club, which operates as a social membership organization and does not have any female or black members, does not appear to be in violation of nondiscrimination provisions of federal tax law or state law." That's because it has fewer than 400 members, a pre-requisite for stricter scrutiny.
City Commissioner Lynne Plaskett, who has questioned the legitimacy of the lease, said she's hopeful Gummey's further review will prove fruitful and avoid potential litigation.
The commissioners had planned to review proposals by various outside attorneys to investigate the legalities of the lease at an initial expense of $20,000, but after speaking with their own attorney again, decided to let him report back his findings.
"Mr. Gummey will sit down and have discussions with the club through their attorney," Plaskett said after tonight's 90-minute workshop in the Utilities Commission building.
Commissioners were initially reluctant to stay in-house with Gummey because he had initially said he believed the lease was legal and binding, a position he has not strayed from.
Commissioner Randy Richenberg said he was unhappy that Angler's Club representatives have not clarified such issues. Richenberg did not return a telephone call for comment after the meeting.
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NSBNEWS.net video by Sera Frederick. Here is a video of the discussion of the Anglers Club lease situation.