There was always an element of the absurd in Flagler Beach’s resistance to Howard Sklar’s marina on the Intracoastal Waterway, the sprawling structure of boat slips, restaurant pad and other amenities conceived in the late 1990s, and still not yet allowed to fully operate by the city. One example among many stands out: it took seven years between the time Sklar requested that house boats at the marina be connected to the city’s central sewer system and the city’s finally permitting the connection.
Timothy Norman, a general consultant with the city from 2003 to 2009, testified in court that he’d never known a situation where it had taken that long for that kind of connection. The reasonable time-frame, in a worst-case scenario, would be one year, he testified.
But so it’s been for Sklar and his marina: one obstacle after another, including a pair of ordinances the city passed in 2009 and 2010 (the latter an amended version of the first) that seemed as if intentionally designed to thwart the project.
In 2010, Sklar sued. The case turned into an odyssey of its own, complications piling upon complications, claims upon counterclaims, hearings upon motions, with the case consuming no fewer than four judges along the way.
Finally on Nov. 15, Flagler County Circuit Judge Scott DuPont issued a 27-page ruling that, absent an appeal by either side, may settle the issue for good and open the way to the Marina. The ruling technically was a split decision, with the judge siding with the city on three counts and with Sklar on three. But in the main, it was a victory for Sklar as the developer won on most of the substantive grounds, losing on more procedural and, to some extent, on minimal regulatory grounds: had he not lost on those grounds the court would have appeared willing to give a developer carte blanche to do as he pleased, as if city regulations were a moot point. Clearly, they cannot be.
The ruling, in sum, is a reasonable medium between reasserting Sklar’s right to do business as a marina in the city, and the city’s right as a government to regulate that marina. But the ruling is also a slap against a city’s unreasonable and seemingly heavy-handed history of overregulating a development whose list of permits from federal, state and city agencies fills almost two pages.
The property in question is visible from the north side of the Flagler Beach bridge, along Lehigh Avenue and into the Intracoastal. Sklar in 1997 got a U.S. Army Corps of Engineers permit to remove 16 docks and boat slips and dredge the area for construction. He got a Florida Department of Environmental Protection permit in 1999 to build three T-shaped docks and 82 boat slips. In 2005 the state permit was modified to allow for 50 of the 82 boat slips to be used for houseboats. Then he got about 10 Flagler Beach permits for trash removal, electricity, building a restaurant shell, building or remodeling structures, and on.
The city did not object to the Marina project. At least not officially. But then came the series of ordinances that seemed written with Sklar’s marina in their crosshairs. In 2001 the city passed one that forbade living on boats except at a “duly licensed marina” (according to the court order. By then Sklar had completed the marina’s docks. In 2005 the city passed another marina-regulating ordinance. Sklar, in good faith, made some alterations in the project to be in compliance.
In 2005 and 2007 he assembled and docked a pair of 44-foot and 40-foot houseboats, registered them with the state and got the appropriate Coast Guard Hull Identification numbers. The houseboats are moored to docks and have no propulsion systems. Sklar before 2009 was also assembling but not manufacturing small personal watercrafts from prefabricated materials.
As with the sewer issue, the assembling of boats rubbed the city’s code enforcement the wrong way, and a dispute emerged, with the city prohibiting the assembling. Sklar sued in 2009 and won: a circuit court ruling found in his favor, that merely assembling boats was not manufacturing them.
A ruling that sees Flagler Beach overregulating a business after the fact.
Then came the 2009 city ordinance adding regulations to marinas, vessels, houseboats and floating structures. It prohibited “floating structures,” and essentially required that “live-aboard” vessels would have to be limited to 41 at the marina, cutting by nine the slips Sklar wanted for houseboats.
Sklar had had enough and sued. Soon after that the city pre-emptively amended that 2009 ordinance “to narrow the issue to be tried in litigation,” but also signaling that it was more interested in litigating than working with the developer and finding a settlement.
The order itself, written in thick and at times impenetrable legal jargon, comes down to sorting out six disputed points. The city won three.
Sklar argued that state law pre-empted the city from enforcing its 2009 and 2010-amended ordinance. It’s true that a city may not regulate seaborne vessels or waterways: that’s not its jurisdiction. But that’s now what the city’s ordinances did, or do: they regulate vessels and floating structures within the city, which is in the city’s right to do, the court ruled.
But while the city won on that count, its victory was muted if not nullified by the fact that the ruling also grandfathered Sklar’s development rights, which pre-dated the passage of the 2009 and 2010 ordinances. Based on the legal doctrine of “equitable estoppel”—a legalese way of translating “fairness”—the ordinance was found to interfere with Sklar’s vested rights.
“The uncontroverted evidence presented demonstrates that [Sklar] obtained all necessary City, State and Federal permits and approvals to develop the property and the Marina,” DuPont’s order reads. In doing so, Sklar, “in good faith reliance on the 2001 ordinance, the 2005 ordinance and the permits and approvals, including, without limitation, the permits issued by the City to connect electrical power and central water and sewer to the docks, made a substantial change in position and incurred extensive obligations and expenses.” The judge added: “The marina was fully constructed and completed prior to the adoption of the 2009 ordinance. Therefore, it would be inequitable to interfere with the vested rights acquired by [Sklar] prior to the adoption of the 2009 ordinance.”
The order explicitly applies grandfathered rights, “without limitations,” to 50 (not 41) of the 82 boat slips for houseboats or live-aboard vessels, and the remaining 32 for transient vessels. “The City is therefore equitably estopped from enforcing the 2009 ordinance as amended by the 2010 ordinance” against Sklar and the marina. Sklar similarly won by grandfather clause the right to have the 40 and 44-foot houseboats at the marina. The city wanted those structures to be declared “non-conforming.” The judge disagreed.
Sklar lost with regards to a matter of definition: he wanted the court to declare houseboats to be “vessels” as opposed to “floating structures.” The court relied on a 2013 U.S. Supreme Court ruling, written with humorous flair by Justice Stephen Breyer, to deny Sklar’s definition. “Not every floating structure is a ‘vessel,’” Breyer had written in that ruling. “To state the obvious, a wooden washtub, a plastic dishpan, a swimming platform on pontoons, a large fishing net, a door taken off its hinges, or Pinocchio (when inside the whale) are not ‘vessels,’ even if they are ‘artificial contrivance[s]’ capable of floating, moving under tow, and incidentally carrying even a fair-sized item or two when they do so.” Breyer went on to declare that, essentially, houseboats are more house than boats. The definition matters because while Sklar is free to build the number of house boars he wanted, the fact that they are moored structures rather than vessels still gives the city some regulatory authority over them.
Sklar also won the right to assemble houseboats at the marina as “a lawful, pre-existing and non-conforming use,” in the ruling’s words. “However, the construction of boats, i.e. the creating and building of a boat from scratch or parts made on-site, is not.”
Finally, Sklar had sought to declare the city’s handling of his sewer-connection request a violation of due process. While the court recognized the abjectly unreasonable delay in a sewer connection, it did not go so far as to declare due process rights to have been violated, resorting to legal fuzziness: Here, the court ruled, “the question is at least debatable,” so it did not find a constitutional violation.
DuPont’s judgment on that count may become relevant in another case: the judge faces a series of very serious charges before the Florida Judicial Qualifications Commission over allegations of election-campaign improprieties. One of those charges focuses on DuPont’s declarations that he does not believe in finding any statute unconstitutional, which may in itself be a violation of the Constitution. The due process issue in the Sklar case may be just such an issue that Sklar himself could, with the judge’s own words on the matter already in the record, seize on in further proceedings.
For now, however, the ruling, which appears in full below, is in: Sklar, on the whole, has won his case.