Inweekly shared with the Pensacola City Council the two legal opinions from John Asmar regarding the non-conformity of the new, larger radio tower built in the Long Hollow Conservation District and the validity of the city’s lease with its owner, Divine Communication. Reporter Jeremy Morrison contacted a few council members to get their opinions on the issues.
Former Council President Andy Terhaar, who was not on the council when the lease agreement was approved, doesn’t believe the city should cancel the lease agreement, unless the leasee is at fault.
“The biggest issue I have is that the city entered into a lease with an individual,” he told Inweekly. “And to me, it’s the city’s responsibility to make sure they have the legal right to lease the property.”
Terhaar said, “I think the city has the responsibility to say to the other party that we’ll help you find some other place to put that up or something.”
He believes the city would be obligated to “make up the financial hardship” of the leasee. “To me, it’s a complicated issue.”
Terhaar, a commercial realtor, was reluctant to comment on the conflicting opinions regarding the non-conformity. He said, “You can ask a hundred attorneys what their opinions are and you’ll probably get a hundred different ones.”
He is concerned about Divine Communication suing the city. “That’s the worst case scenario — we say, ‘hey, we cancel it, take it down,’ and then we have to deal with the lawsuit.”
He isn’t concerned about there being any type of precedent issue being established by the City Attorney’s legal opinion that non-conforming uses and structure can be rebuilt as long as the use isn’t discontinued for more than a year.
“I don’t think it’s going to have that sort of effect on it,” said Terhaar.
“If he didn’t get the correct permits, didn’t get the correct inspections, you tell him, ‘yeah, you’ve got to take this stuff down,’” he told Inweekly.
And if it’s determined that Divine Communications failed to follow the proper permitting and inspection processes, Terhaar said, “If he did, I have no problem telling him, ‘hey, you screwed up, you’re SOL.’”
New Council President Charles Bare said he preferred to wait until the council staff has accumulated all the information on the lease and radio tower.
“I’m just waiting until I get all the documents in hand before I move forward” said Bare, pointing out that there’s more info to be had than what the administration has provided so far — “there’s quite a bit more” — to include info provided by Melanie Nichols and others … “there’s a lot more.”
Veteran Councilman P.C. Wu didn’t want to comment on any legal opinions, or the implications thereof: “I’m not an attorney.”
As far as the overall issue, he shared a few thoughts.
“At this stage it seems to be entirely convoluted,” said Wu, who has served on the council since 2004. “It seems to be a big mess at this stage.”
He believes that the lease should have never been renewed “because it was on conservation land and against the land development code.” HE wonders why council wasn’t told about the conflicting land use when it was asked to the lease in May 2012.
Wu said, “This started off on a track that was a no-track, and where we are now is way down the no-track.”
He wants to learn more before making any decisions on this issue.
“The problem is at this point, they’ve invested money in it,” said Wu.
The lone attorney on the city council has a plan of action.
Councilwoman Sherri Myers said the plans to ask the council to add on the agenda an item for the council to hire an attorney to render an independent legal opinion on the non-conformity of the new radio tower built in the Long Hollow Conservation District and the validity of the lease agreement with its owner.
“We have two different legal opinions,” Myers told Inweekly. “One from the city attorney and the other by John Asmar, who I think is a fine attorney.”
She pointed out that the charter amendment passed by city voters last year gave the council to hire its own legal counsel. Until then, the mayor’s office chose the attorneys it wanted to review matters.
“We need someone who has no skin in the game,” said Myers, explaining that the attorney must not have a relationship with the mayor, but should be versed in municipal law.