Flagler Beach Unanimously Approves Marina Settlement That May End 7-Year Suit

Seven years after Howard Sklar sued Flagler Beach over what he perceived as the city’s unreasonable obstacles to opening his marina on the Intracoastal Waterway, and some 20 years after he began developing the property to that end–it was done in 2001–the Flagler Beach City Commission this evening unanimously agreed to a settlement that may finally clear the way for the marina to open.

But it’s not over: It’s now up to Sklar to sign off on tonight’s vote.

The settlement required both sides to abandon what had long been deal-breakers. The city will not pay Sklar any compensation, contrary to what Sklar had sought over the years. Even the settlement agreement included a paragraph calling on the city to agree to pay Sklar $100,000, not so much in compensation, as Sklar’s attorney described it, but as money to defray the costs of opening the marina.

City attorney Drew Smith struck the whole paragraph from the agreement as he reviewed the document with the City Commission. He was really going through motions agreed to earlier in a closed-door session with the commission, where the agreement was discussed and commissioners appeared ready to approve it formally in open session, with three adjustments. There was little discussion as Smith went through what remained of the agreement to iron out. Sklar’s attorney, Jay Livingston, stood at the podium, providing clarifications where needed. He was well aware that the city would strike out the paragraph about money, which suggests that Sklar is willing to go along at this point. A court order, in any case, had ruled against Sklar’s claims for compensation. Sklar himself was not in the room.

“These changes were not surprises,” Livingtson said, though he said Sklar had held out hope that there’d be some money forthcoming from the city, given the costs he’d incurred. “But it’s definitely something he’ll consider.”

For its part, the city relented on letting Sklar build floating homes at the 2-acre marina or repair boats, albeit within certain constraints, such as ensuring that all construction takes place indoors. “All of the work, especially the glass work, can be done inside,” Livingston said. There would be almost no work related to boat assembly taking place outside, which would minimize noise, odors and unsightliness. The two sides worked out other minor disagreements, which Livingston called “superficial,” including a limit on the capacity of a proposed restaurant at the site. Whether that restaurant is actually built or not is unclear.

“Subject to some maintenance, subject to the insurance that I talked about, subject to the activation requirements, we could open up that marina tomorrow,” Livingston said. “The plan is, if my client is agreeable to the changes, is to get this in place, settle the case, go through the procedural steps to make sure the case is properly closed out, and then either himself or somebody he would work with or contract with to activate the marina.

Today’s meeting was the first that had Livingston and the commission speaking face to face, with the commission itself providing a finished document that it’s voted on. “This is the first time that something has come from them that says we are willing to accept this, so if there’s ever been a moment where this can be resolved, it’s now, and I’m hopeful,” Livingtson said.

In November a circuit judge issued a ruling that rejected claims by both sides, and approved some for each. Overall, and money aside, the order favored Sklar, spurring the commission to seek a settlement. The marina itself has been idle for almost two decades

The 82 boat slips at the marina slips were all built from 1999 to 2001, with 50 of them allowed to be for live-aboard boats, two of which have been moored at the marina for years. The rest may be transient, or more traditional, boats. The court ruled that boats built from scratch at the site were not permissible, but boats pre-manufactured and assembled at the site were. So more such boats may be assembled in the future. Dry-boat storage will be allowed for up to 36 boats. A bait and tackle shop may be operated on the property, as may other amenities and a 185-seat restaurant. The 13-page agreement also calls for more mundane specifications about parking, building heights and code issues.

Flagler Beach Commissioner Rick Belhumeur made the motion to approve the settlement, though technically the motion is for the city attorney to negotiate the final agreement as written, and get Sklar’s signature, if he’s willing to sign, by May 24.

“I don’t think we need any more shade meetings,” Livingston said of closed-door meetings.

“Or meetings here,” Smith said.

The only commissioner to hesitate before voting was Marshal Shupe. “I have some concerns but I can get over it,” he said.

The vote was recorded at 7:13 p.m.

“It’s not signed yet,” Mayor Linda Provencher cautioned. The city has also filed an appeal of the November circuit court decision, and Livingston filed a cross-appeal.

“So nothing is set in stone and anything could happen in the future if we continue to litigate this case,” Livingston said. But, he noted, “everybody is getting weary of the battle.” He added of Sklar: “At the end of the day he’s going to make the decision based upon what’s best for him. Other than considering the changes that the city made, the bulk of the agreement was approved unanimously.” Sklar, he said, has been “comfortable” with the basic structure of the agreement “for a very long time.”