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 has 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.
Editor's Note:
NEW SMYRNA BEACH -- NSBSHADOW.com, a weekly Web site operated by retired federal judge and New Smyrna Beach resident Nahum Litt, was first to report the news tonight that an outside law firm hired by New Smyrna Beach determined that the longstanding $25-a-year lease with the Angler's Club for prime riverfront property is not valid (See our posted story).
The Shadow is the bane of many city officials for his "lampoons" and what many in the public eye at City Hall perceive as personal attacks. Litt has declined our invitation to be interviewed or profiled about his Web site, except to say he's doing what's in the best interest of the taxpayers.