It’s not for nothing that Howard Sklar has a reputation as an unpredictable man, sometimes infuriatingly so. Nothing else explains how talks between him and the Flagler Beach City Commission, so close to resolving a two-decade dispute over his immobilized Marina on the Intracoastal Waterway a few weeks ago, once again collapsed.
The case—Sklar’s 2010 lawsuit against the city– is heading back to court for a re-hearing on Sept. 27, and pending that outcome, it may well go on to the Fifth District Court of Appeal. In other words, it’s back to zero or thereabout.
Even Sklar’s biggest defenders on the commission were exasperated. His own attorney, Jay Livingston, sympathized, as commissioners did with him right after their unanimous vote in mid-July to send the case back to court. “Sorry Jay,” a couple of them told him, like captives commiserating with their captor, though it’s not clear who is who in this equation.
“It’s not my fault. It’s not your fault,” Livingston told them. “It is what it is. Hopefully I’ll see you on better things the next time around.”
Two factors played into the collapse of the talks. One of them affected the outcome of the vote: Sklar had changed the wording of the settlement agreement at the last minute, well beyond the scope of what commissioners had signed off on the last time they’d discuss the agreement, in late June. The other factor only underscored commissioners’ exasperation: it’s Sklar’s habit of speaking with some commissioners outside of meetings but not others (namely, Marshall Shupe and Rick Belhumeur), and sharing with them his latest changes, which don’t make it into other commissioners’ hands until hours before their meeting.
Historically speaking, the city going back two decades, when Sklar began building the marina, had itself been erratic, unpredictable and overly—and at times inexplicably—regulatory of Sklar’s operation even as he attempted to comply with city rules. But he also felt that the city was either misinterpreting certain rules or making them up as it went along. He’s long wanted to build livable houseboats that would be moored to his docks at the marina. The city has resisted him, with the two sides hung up on definitions of such things as “vessels” (which the city could not regulate) and “manufacturing,” which the city considers impermissible, and which Sklar says is not what would be happening, anyway: he’d merely be assembling house boats.
“No building, no deal.”
He eventually sued. Late last year a circuit judge ruled mostly in favor of Sklar, clearing the way for “assembly” of boats on the property, and keeping the city from regulating the boats themselves. The city agreed to open settlement talks. The talks seemed to go well, and by late June, commissioners seemed confident that the matter would be settled for good. There were a few wording changes to go through. That’s where they left off, thinking the two sides were finally in agreement but for a few minor scratches.
But something happened in mid-July when Sklar backed off one essential point. The commission had agreed to an assembly and repair operation at the marina, as long as it took place inside a building, so as to contain noise and smells. But when commissioners got the latest version of the proposed settlement agreement just before their mid-July meeting, that provision was gone. Sklar didn’t want the building requirement anymore. As Drew Smith, Flagler Beach’s attorney, put it, “he has the right to build a building, not the obligation.”
Livingston acknowledged commissioners’ surprise. His explanation: there would be “maybe $200,000 in cost involved if the building was included,” he said. And Sklar now was saying that the court order from last fall does not require him to build a building. In his calculation, it’s cheaper to go back to court for a clarification than it is to go ahead and build the building.
Commissioners couldn’t believe it.
“We went from, it’s not going to be happening outside, to now, it’ll happen outside,” Commissioner Joy McGrew said of the house boat assembly. “No building, no deal.”
“I don’t need to talk about anything else,” a dejected Jane Mealy, who chairs the commission, said.
Commissioner Kim Carney said the commission had a very clear message from the community. “They don’t want to hear it, they don’t want to see it,” she said. “We were so close when we had that building, a clear understanding. I was so disappointed when I saw this.” Carney was also disturbed by the implication of building outside. A building would have limited the number of house boats that could be assembled at the marina at any one time. Outside, Sklar could build 25 units at the same time, she said.
Then there was the manner in which Sklar changed his mind.
“I just can’t believe that Howard sent this to you, the first version earlier, a week prior, I guess, or thereabouts, not too many days after our meeting,” Belhumeur said to the city attorney, “and it included the building and the 50 limit and the word change, and then all of a sudden he dropped it out. I thought we were done with this.”
“That just seems very inappropriate to me that he would work with two commissioners, not all of us,” Mealy said, “that he would give information to two commissioners, but it doesn’t matter because I’m not going to vote differently anyway.”
By then Mealy didn’t need to convince anyone else. There was unanimity on the commission to reject the agreement and go to court. “There’s nothing left to do,” Mealy said.
Update: On Aug. 2, Commissioner Belhumeur sent in the following statement: “I have worked tirelessly behind the scenes to help make this proposed amenity a reality for our city. Mr. Sklar has spent hundreds of thousands of dollars over the last 15 years to keep his dream afloat (pun intended) and has not given up yet. A misunderstanding by Howard of the latest proposed city version of a settlement led him to remove some concessions he had included in a previous version. I still believe that we will reach a settlement sooner as opposed to later. This city needs a marina and I will continue to work towards that goal.”