The Attorneys Speak: Riverstone Proposal Is 'Deeply Flawed'

Dear Chair and Members of the Nassau County Commission:

I, along with Reese Henderson, represent a group of property owners on Amelia Island, including the Amelia Island Sanctuary Property Owners Association (“Affected Property Owners”) who have asked me to review and provide their objections to the most recent proposed Settlement Offer and Agreement (“Proposed Agreement”) between Nassau County and Riverstone Properties, LLC (“Riverstone”). We understand the Proposed Agreement is scheduled for consideration on April 24, 2023.

EXECUTIVE SUMMARY

The Proposed Agreement with Riverstone is premature, deeply flawed and does not represent a good deal for the taxpayers and citizens of Nassau County. It rewards the efforts of a developer to rollover the County and its citizens by awarding development and other rights without following applicable laws. Contrary to the County Attorney’s advice, this will not bring an end to litigation, and will only encourage other developers to take the same approach.

BACKGROUND

It is our understanding that the intent of the Proposed Agreement is to settle two specific lawsuits:

1. Riverstone Properties, LLC v. Nassau County, Florida, Case No. 22-CA-247 which was filed in the Circuit Court Fourth Judicial Circuit in and for Nassau County relating to judicial claims in a Bert Harris lawsuit (“Bert Harris Lawsuit”).

2. Riverstone Properties, LLC v. Nassau County, Florida, Case No. 21-CA-190 filed in the Circuit Court Fourth Judicial Circuit. This case is in regard to alleged procedural flaws with Ordinance No. 2021-08, adopted June 14, 2021 (“Original Ordinance Lawsuit”) .

As you may recall on May 23, 2022, pursuant to a Notice of Claim under the Bert Harris, Jr. Act, Fla. Stat. Section 70.00, the County Attorney, Denise May brought forward a Settlement Offer and Agreement to the Nassau County Board of County Commissioners (“BCC”) for consideration (“Bert Harris Offer”). Prior to the BCC consideration of the Bert Harris Offer, we presented the attached letter and attachments which detailed the Affected Property Owners objections and legal arguments as to why the Bert Harris Offer must rejected. (“Objection Letter”). The Bert Harris Offer was rejected by the BCC after over 100 Affected Property Owners attended and spoke in opposition to the proposal.

The Proposed Agreement presents the same development proposal for settlement as the Bert Harris Offer. The only significant difference between the Bert Harris Offer and the Proposed Agreement is that Nassau County would also pay $250,000.00 to Riverstone for its attorneys' fees. Thus, for the reasons stated herein and the reasons stated in the Objection Letter, the Affected Property Owners request rejection of the Proposed Agreement and request that Nassau County remain vigilant in its efforts to defend the Original Ordinance and the Amended Ordinance1.

PENDING LITIGATION

Currently, there is only one Motion pending before the Court in the matter of the Original Ordinance Lawsuit. Riverstone amended its lawsuit to include a new allegation that there was not a proper determination by the Planning and Zoning Board (“PZ Board”) serving as the required local planning agency in providing a recommendation to the BCC on land use regulations. Although Riverstone has made a variety of arguments as to the flaws of the Original Ordinance, the Court has not yet ruled on this procedural question.

Riverstone is essentially claiming that because the PZ Board’s motion to recommend the ordinance failed on a tied vote, the BCC procedurally could not take up the ordinance. However, the required procedure in the Nassau County Land Development Code and Florida Statutes was followed, which requires consideration and action by the local planning agency. That occurred. Thus, the BCC as the ultimate determiner of consistency with the Nassau County Comprehensive Plan, properly voted to approve the Original Ordinance on June 14, 2021. There is no direct case law which undermines the BCC action on the Original Ordinance nor has the Court considered the arguments Riverstone or Nassau County. And, as noted in the Objection Letter, Riverstone was in attendance at the June 14, 2021 hearing on the Original Ordinance and failed to raise any of these procedural arguments. Thus, Riverstone has waived its right to raise such issues at this juncture. Thus, settlement at this juncture is premature2.

PROPOSED SETTLEMENT

Attorney Fee Request:

As stated above, the only matter with a pending motion is the Original Ordinance Lawsuit. In that litigation, there is no claim, nor can there be a claim for attorney’s fees. Thus, the attempt by Riverstone to attain legal fees at this stage of the litigation likewise both premature and unnecessary. Riverstone instead would have to litigate and prevail on its Bert Harris Act lawsuit, which is highly speculative particularly at this stage of the lawsuit where there have been no substantive hearings and minimal discovery. Certainly nothing has occurred to warrant a quarter million dollars in attorney’s fees.

1 The Original Ordinance was amended by the “Amended Ordinance” 2021-20, adopted on September 27, 2021. The Amended Ordinance increased the allowable height provisions from 35 feet to 45 feet.

2 Even if the Court determines that there was a procedural foot fault, there are many remedies short of invalidating the Ordinance. Further, the Pending Ordinance Doctrine would appear to apply as well given how long the Original Ordinance was under consideration, i.e. from February 2, 2021 to June 14, 2021.

Development Approvals:

As stated above, the development approval portion of the Proposed Agreement is identical to the Bert Harris Offer. The fatal flaws in Proposed Agreement are identical to that of that Bert Harris Offer as specifically detailed in the Objection Letter. Approval of the Proposed Agreement would very clearly be in contravention of law, including illegal contract zoning. This renders the Proposed Agreement subject to a legal challenge, which would likely succeed.

Original Ordinance Litigation:

The Proposed Agreement ignores many of the issues with Riverstone’s claims in the Original Ordinance Lawsuit. It is important to note, that there are many defenses which do not appear to have been raised or fully argued, including the fact that any claimed procedural deficiencies have been waived, that the Amended Ordinance would render any potential procedural deficiencies moot and that the pending ordinance doctrine would apply to any application filed under the Original Ordinance. Given these deficiencies, it is not clear why the County would simply settle by giving Riverstone everything it has asked for without a fight or even a negotiation.

CONCLUSION

As stated in this letter and the Objection Letter, which is attached hereto the Proposed Agreement is premature, legally flawed and does not present the best option for Nassau County. The Affected Property Owners remain steadfast in their opposition and stand ready to support Nassau County in rejecting the flawed and inappropriate settlement.

Julia Mandell

and Reese Henderson