Fearing Costs of Long and Losing Battle, Flagler Beach Surrenders to Sea Ray

A divided Flagler Beach City Commission, with Commissioner Steve Settle’s “reluctant” swing vote, agreed to drop its challenge of a county land use change that enabled Sea Ray Boats to build a large parking lot south of its property off Colbert Lane. It had been Settle’s swing vote in August that had made the challenge possible originally.

But that set in motion litigation, uncertainty and delays that exerted pressure on mediators to resolve the situation. All-day mediation took place a week ago. It was not conclusive just then, but hours before last Thursday’s city commission meeting—at 3 p.m.—com missioners were presented with a settlement agreement between Sea Ray, the county and Flagler Beach that they were essentially forced to accept or reject a few hours later at their scheduled city commission meeting. After an hour’s discussion, they accepted it. It’ll be in force once the county commission ratifies it.

Much of the city commission’s discussion echoed the sort of skepticism attaching to the recent American deal with Iran over nuclear weapons—city commissioners led by Kim Carney and Jane Mealy and city resident Roseanne Stocker, who’s led the citizens’ initiative against Sear Ray, said Sea Ray gave up nothing in exchange for too much, that Sea Ray was making mere promises, and that what it was providing by way of transparency was nothing the public could not already access through public records. Meanwhile, Stocker said, a “bad deal” is being allowed to go forward.

The conflict had centered on Sea Ray’s plan to build a 25-acre parking lot south of its existing property, and possibly add an office building there. Opponents were concentrated along neighboring Lambert Avenue in Flagler Beach. They charged that the plan would hurt their property values and increase noise levels. But their legal opposition focused on the county’s decision to allow Sea Ray to change zoning where, opponents argued, nothing in land use law should have enabled the change. The city agreed to contest that part of the process by appealing to the state, even though that would have done nothing to alter Sea Ray’s emissions, which have also been a point of contention for opponents.

Flagler Beach commissioners had also complained about Sea Ray proceeding without involving the city (Sea Ray is not inside Flagler Beach city limits, but adjacent to them).

“I believe that we have that communication, at least the promise of communication,” City Commission Chairman Shupe said, signaling what convinced him to go along with the agreement. He had sat in on the day-long mediation session. “I don’t know how if we proceed with this and get them to a point where they say Ok, forget it, No, then I think we’re opening up something that might be beyond our financial responsibility. I know it’s maybe not popular in some ways, but some of the conversations I’ve been involved in–I don’t want to be sued by the county and by Sea Ray and by Brunswick, and they’re going to sue the city of Flagler Beach because we can’t come to an agreement.”

The reversal clears the way for Sea Ray to start construction without any legal shadows hanging over the project. It also ends what had become a bitter and costly dispute between the city and the company as well as the city and the county, with Sea Ray bombarding the city with public record requests and the city looking at lengthy and very costly preparation for an Oct. 9 hearing before the state Department of Administrative Hearings. Flagler Beach had spent some $40,000 on the battle so far.

“Last couple of weeks of communication I have heard a very conciliatory tone coming from Sea Ray,” Drew Smith, who led the negotiations as Flagler Beach’s attorney, told commissioners. “I think there is an opportunity to work toward a more collaborative, as opposed to have conflict relationship with them. I think in their mind and why I say this, these terms are aspirational but they are conciliatory, and they are about sitting down and talking, because I think they do recognize it will be easier to have that type of relationship than one of conflict with the city. The settlement agreement is part of that.” Smith also warned: “Every day from now until October 9 there’ll be somebody in my office, often multiple people in my office, preparing” for the hearing.

“We need to our attorney whom we pay, and we need to accept what we have received at this point in time as fair negotiations,” Commissioner Joy McGrew said. “Are they going to live up to it? Who knows, but at least they have put it on paper that they will do that, something that we can hold their feet to the fire. I can tell you the majority of phone calls I’m getting and the people I’m talking to are not in favor of us going forward with this. I’m in favor of accepting what we’ve been offered.”

Commissioner Mealy was not. “I’m not ready to agree to this today. I need more time to really look at it,” Mealy said, repeatedly objecting to the fact that the settlement agreement had been presented to commissioners mere hours before.  She reminded her fellow-commissioners that one of the most contentious meetings she ever chaired involved a threat from a deep-pocketed company to sue the city if the city went forward with plans to acquire the old golf course at the south end of town and disallowed a zoning change for the company to build there. The city stood its ground and eventually acquired the golf course.

“What I hate is that people come to this small town, they look at us as a bunch of idiots, what do we know because you’re from a small town, and they think they can walk in here and trample all over us. And this has happened several times,” Mealy said.

The five-page agreement includes two pages of conditions: Sea Ray is to provide copies of all emission reports, semi-annually, to the county and the city (reports that it already provides the Department of Environmental Protection, which in turn makes them accessible through the web.) Sea Ray is also to provide the city and the county copies of any applications for increases in its emission capacities. Those reports are also available online.

The city agrees to dismiss its legal challenge to the land use amendment. And the county agrees to apply its Industrial Performance Standards to the Sea Ray property, if and when that issue becomes applicable. It will also establish a joint planning committee with the city and keep the city aware of any relevant land development applications. The owner of the property joins the agreement as well.

There was little public opposition to the proposal, other than from Stocker.

“When we went forward with this, we knew what it would cost, and we knew the stakes and we knew that it was going to be a tough bottle,” Stocker said. “We went into negotiations and I believe in my heart of hearts that our team did the best that they could. But we were hoping for some sort of a give and take, and clearly, from what I’ve heard here, they really aren’t giving anything. We have the county saying that they’re going to do a better job of communication about their own comp plan they should have done all along. We have Sea Ray that they’re going to provide to the city things that are public record anyway, you can easily get the emission reports, and you can easily get their request to expand. You can get those just from the DEP.” Stocker continued to insists that “sea Ray intends to expand,” and is expanding. “What we hoped to do was prevent that expansion,” because of the carcinogens being spewed in the atmosphere from the Sea Ray plant.

But in the end, commissioners were disinclined to keep spending money on a case with little chance of victory, and with a vague objective. Even when Mealy asked her colleagues if they were interested in turning to an environmental group to pick up the battle on Flagler Beach’s behalf, she got little interest.

“It’s not that I’m not willing to spend money,” Mayor Linda Provencher said. “I’m not willing to spend money on a losing case. And we’re not going to win this case. And what are we going to win? They’re still going to be doing environmentally unfriendly things.”

Click to access INTERLOCAL-SETTLEMENT-AGREEMENT-County-Proposed-Revisions-9.24.15-3-1.pdf