This will be a multi part post.
At last Tuesday’s City Council meeting, the issue of the City leasing air space over the state owned green space came to a head and such was the major reason that Slabbed was interested in that meeting. To set things up, at the council meeting of November 8, 2016, Mayor Fillingame told the Council there was no written lease for the use of air space over the state owned Green Space at the Harbor used by Triple Tails and when that was relayed to Slabbed, we immediately spotted major potential problems. At this point we need to give a major hat tip to Lana Noonan and the Hancock County Alliance for Good Government who did some major legwork for Slabbed New Media in advance of last Tuesday’s meeting.
First up is the construction of the Bay Harbor courtesy of the U.S. taxpayers, the taking of private land for the Harbor and construction of the new Seawall under the auspices of the US Army Corp of Engineers. After the construction of the Seawall was completed property lines were redrawn and a strip of Green Space between the private property and the seawall was created. It is the City’s inability to manage this small strip of land that is the topic of this post as we explore how one private business, Triple Tails, was able to build and cantilever part of their building over the property line into the air space above the state owned green space. Mayor Fillingame and his administration’s inability to manage this green space in accordance with the lease has now caused major problems that are not easily fixed.
A timeline of events is in order:
- April 6, 2011 – City enters into a lease agreement for Public Trust Tidelands with the Mississippi Secretary of State.
- July 8, 2014 – Kevin Fitzpatrick appears before Council as architect for Triple Tails requesting permission to cantilever balconies over state property.
- February 23, 2015 – City Attorney Rafferty tells Council that the Secretary of State’s office asked Council to prepare a proposal including rates and other lease terms for the Triple Tails airspace use. Rafferty advised the Council that the Secretary of State’s office says they do not want money for the rental, rather it is the City’s funds to be used for the Harbor. Rafferty advised that the Secretary of State’s office wants a resolution from Council covering the above items.
- March 3, 2015 – Mayor Fillingame tells the City Council that he and City Attorney Rafferty met with Ray Carter of the Secretary of State’s office on Feb. 28, 2015. They further advised that Mr. Carter was agreeable to an Airspace Utilization Plan which is to include costs and what businesses want to rent and utilize the green space strip. Mayor Fillingame tells the City Council he and Mr. Rafferty will work on the plan and have it ready for Council to vote on at the March 17 meeting.
- March 17, 2015 – Councilman Favre moves, seconded by Compretta to approve resolution on airspace usage with corrections identified to be made by Rafferty with copies to be provided to Council and forwarded to the Secretary of State’s office. Motion carried unanimously.
- May 5, 2015 – Under Old Council Business “Air Space Rental” Councilman Seal states that as of May 4, 2015, there has been no decision on the March 17, 2015 resolution. The Council was to be notified once a decision has been made by the Secretary of State’s office.
- May 19, 2015 – Under Air Space Rental, Mr. Rafferty tells Council the Secretary of State’s office has concerns about remedies should a sub lessee quit paying that air space lease. Also the Secretary of State’s office wants to know if City charged Triple Tails for use of state green space property for use as a storage yard during construction. Per the Administration, the fees would be same as other businesses were charged for using the green space as construction storage. Mayor Fillingame states that the Secretary of State’s office stated they will support whatever fee schedules the City designs.
- July 7, 2015 – Councilman Favre moved, seconded by Councilman Boudin, for the Council Clerk to send a letter to the Secretary of State’s office and request their presence at next Council meeting, or provide a date when 3 members of Council can meet with themat their office in Jackson.
- August 18, 2015: City Council Agenda item styled “COMMERCIAL VENTURE BUILDING ON CITY PROPERTY”. A Motion was made to approve a City Right-of-Way for Triple Tails. Councilwoman McDonald moves, seconded by Councilman Favre, to approve the Resolution for granting a City Right-of-Way to Triple Tails. All present voted yea.
- According to the Sea Coast Echo of Sept. 26, 2015, Triple Tails had their soft opening.
- January 13, 2016 – Mayor Les Fillingame and Councilpersons Compretta, Seal and McDonald meet with Secretary of State Hosemann, Secretary of State Tidelands Attorney Ray Carter and Secretary of State Counsel Gerald McWhorter in Jackson. Hoseman informs those in attendance that due to the continuing controversy and “negative issues” with the use of the green space he would support no other use for it beyond public access to the beach and harbor.
During this entire time period there was another salient event chain happening as certain of the land owners were not compensated at all for the loss of their property, most notably the Murphy family, who owned and operated Dan B’s at the Harbor site before Hurricane Katrina. On March 19, 2015 after years of litigation, a jury awarded the Murphys $644,000 for their land that was taken without compensation. On October 27, 2016, this judgment was affirmed by the Mississippi Supreme Court. The Murphy family lost part of their land but were finally compensated. Part of that $644,000 judgment also bought the strip of green space between the Murphys’ property and the Seawall. Let’s add some salient events to the timeline:
- June 7, 2016 – The Bay St. Louis City Council granted a 60-day construction easement to the Murphys that will allow crews to use city property during the construction of the restaurant and bar.
- September 9, 2016 – The City issues the first of two stop work orders on the project because the plans were not stamped on every page.
- September 27, 2016 – Second stop work order issued on the same day the first stop work order was released.
- October – November 2016 – Dan B’s builds balconies over the state green space without permission, exceeding their property lines.
- November 7, 2016 – City Attorney Trent Favre sends letter to the Murphy’s demanding the balconies be removed.
- November 22, 2016 – Murphy family members appear at City Council meeting seeking the same deal for the use of air space as was given by the City to Triple Tails. City Attorney Favre mentions later at same meeting that the Murphy family had submitted two different plans to the Bay Building department (only one depicting balconies). Mistake not caught by Building Department until the property lines were exceeded.
Worth repeating is it came out at the November 8, 2016 council meeting that a written lease with Triple Tails was never executed for Secretary of State approval. Let’s quote from Cassandra Favre’s comprehensive article linked immediately above to get the Mayor’s explanation for how this fell through the cracks:
Trent Favre also asked the councilmen what makes them think the state approved the arrangement with Tripletails?
Falgout read from the minutes of the Feb. 23, 2015 meeting where former city attorney Donald Rafferty said the Secretary of State asked the city council to propose figures that it deemed adequate to charge for air space. Falgout read that Rafferty stated the money is to be deposited into the harbor fund and that the state “does not want the money.”
Falgout said that Rafferty had said the state wanted a resolution from the city what it wants to do and the state would not authorize columns and wants “nothing but free space underneath.”
“Mr. Rafferty cannot speak for the state on this I’m sure,” Mayor Les Fillingame said. “And I’m sure the Secretary of State wouldn’t be letting him be stating their policies. So he was suggesting what he understood to be the truth.”
Since then, Fillingame said, the state still needs to sign off on the lease and he thinks Rafferty went back to the state and there was some “resistance” and the state wanted some more information.
“Ultimately, it went on long enough that it just got lost in the shuffle,” Fillingame said. “What I would suggest we do, let’s go ahead and offer Mr. Murphy the same deal we offered Tripletails and let’s go back to them and see if we can’t get the state to sign off on that as an ongoing prescribed use of the air space.”
Councilman Bobby Compretta asked if the Murphys will have to wait until the Secretary of State approves the lease.
Both Falgout and Compretta agreed that the council needs to authorize the Murphys to move forward.
Murphy said his financiers want a letter stating they
“can do this.”
“The issue is, the title insurance that they are required to have for their lender now notes an encroachment on a property,” Trent Favre said. “So until that is resolved, they’re not going to issue the next endorsement for their draw.”
Murphy said the city and state allowed Tripletails to do it for almost two years without a lease and “you’re setting yourself up for a lawsuit.”
Seal said “we’re not denying you the same thing,” but the bank is not going to distribute money just because the council told them to.
Council members said they would like to see the Murphys move forward, but Seal said, “It’s got to be approved by the Secretary of State.”
It was around that point in the meeting that I wondered if the above exchanges were all for show, especially Councilman Seal’s last remark quoted above. Trent Favre’s question to the Mayor and Council bears repeating:
Trent Favre also asked the councilmen what makes them think the state approved the arrangement with Tripletails?
I’ll see Mr. Favre’s question and raise the bet by asking the Murphy family what makes them think the City Council is not playing them for fools? Slabbed New Media has been leaked many things related to the City through time but one document today stands above the rest and that would be the notes prepared by Councilman Seal from the meeting held on January 13, 2016 between the Mayor and three City Council members (Seal, Compretta and McDonald) and Secretary of State Delbert Hosemann and it is rich:
*SOS was very unhappy at the onset of the meeting about all the negative issues with Green space and his solution was there would be NO USE except for public access.
*He stated all the issues that they have had to address has made his decision easy and he did not want to have to deal with this anymore, the Green space will be used by the Public and that is what is in the best interest of all parties. It was explained that the reason for all the issues is there are no clear and concise uses approved and that the approval process can be cumbersome”
Does anyone reckon that Seal, Compretta, McDonald or Hizzoner came clean with Hosemann about the council granting Triple Tails permission to cantilever their building over the green space in direct violation of the lease between the City and the Secretary of State? I don’t think so folks as I bet mum was the word yet here we are 10 months later and two of the three same City Council members that attended the meeting in January still could not shoot straight with the Murphys by telling them no leases would be approved by the Secretary of State.
The implications here are pretty dramatic for the Murphy family, who evidently purposely built over the property line to force the issue on the City as well as Triple Tails, who tried to do things right and now find themselves built over a property line without the proper authorization. The legal solution is a tear down and that is pretty drastic.
What is clear is that the Mayor has accomplices in making this mess and their names are Seal, Compretta and McDonald. They could have shot straight with Hoseman about Triple Tails in my opinion. They could have shot straight with the Murphys but instead preferred to act like imbeciles. Something tells me the fix will not be easy or seamless.
Finally it is worth noting that all of this was missed by City Auditor Robert Culumber, who evidently either did not read the Council minutes or otherwise failed to connect the February 23, 2015 minutes to an actual lease agreement (or in this case the lack thereof). Lana Noonan of the Hancock County Alliance for Good Government pointed out that audit failure last Tuesday and was contradicted by Councilman Boudin, who made excuses for Culumber missing this major internal control issue mistakenly telling Noonan that auditors did not read all the minutes. It is a sad state of affairs all around folks.
Yesterday Slabbed contacted the Secretary of State’s office for their comment on this matter and was contacted by Leah Smith who runs public relations for them. I submitted certain question regarding this mess to her and was promised an answer within a few days. That will be fodder for a followup post. Those interested in seeing Councilman Seal’s notes from the January 13, 2016 meeting between the City and Secretary Hosemann can obtain the 8 page pdf by clicking here.
The bottom line is managing public trust lands is not complicated, somewhere around 100 or so public school districts in this state manage their 16th section lands without controversy or creating a gargantuan mess. The fact that the City of Bay St Louis is managed like it is run by a bunch of kindergarten kids is another damning indictment of the administration, albeit one that should surprise no one. Stay tuned.