Marina Issue in Avalon Stirs Emotions

AVALON – The June 28 meeting of the Avalon Borough Council was the last meeting prior to the annual July reorganization of the borough’s governing body.
Nancy Hudanich has served as council president for the past year, a post she will relinquish.
Hudanich used this final meeting in her current role to go on record against what she called the “lack of civility” that at times has intruded into council meetings. That included “attacks on character” against council or borough employees as part of public comments during debate over controversial issues.
She called for a return to civil discourse claiming that all had the same ultimate concern for the borough’s welfare.
For this meeting at least her call for measured and civil discourse did not hold.
One of the speakers to address council was an attorney who introduced himself as Thomas Thaddeus Marshall. He is the brother of Travis Marshall who, as the owner of the Avalon Marina at Anchorage, is the defendant in litigation brought by the borough.
The litigation stems from a long-standing dispute over the development plans for the marina.
The borough claims that it vacated land as part of an agreement with the marina’s previous owner in return for an agreement that the marina would maintain or develop specific public amenities at the site. 
The new owner, Travis Marshall, bought the property in 2012 with no formal deed restrictions and no knowledge of the agreement between the borough and the previous owner.
Marshall claimed that he received a clear title to the property with no conditions disclosed by the previous owner or any restrictions placed on the sale by the borough. He presented his site plan to the borough in 2015 and says that was the first time he knew of any borough expectations.
The borough has litigated to force Marshall to develop the property in such a way as to include the public amenities. Marshall has maintained that he has no obligation to alter his plans since the borough’s expectations were not conditional at the time he purchased the property.
So far the courts have agreed with Marshall who won at both the lower court and Appellate Court levels. The borough is seeking an appeal to the state Supreme Court.
When Thomas Marshall stepped to the podium, it was clear the tone of the meeting was going to change. He denounced the borough’s actions to-date. 
Engaging in what almost amounted to a shouting match with Hudanich, he threatened the borough and borough officials with legal action over what he saw as the punitive nature of the borough’s pursuit of the litigation.
When Hudanich accused him of threatening the council, Thomas Marshall admitted that he was delivering a “legal threat.”
He indicated that if the borough maintained its current posture, a case could be brought against the borough and officials in federal court.
“We will get to know each other very well,” he threatened.
Assistant Business Administrator James Waldron interrupted the heated exchange to point out that Thomas Marshall was not Travis Marshall’s attorney of record and should not be making these remarks in the absence of said attorney.
Thomas Marshall argued that he was speaking for his brother who was present, and told the council that a formal offer to settle the litigation was coming to the borough shortly.
He maintained the nature of his remarks in his parting comment when he advised council members to get a briefing on the limits of “qualified immunity.”
The term “qualified immunity” refers to a level of immunity from civil actions enjoyed by public officials relating to actions undertaken in their official capacity.
The shield provided by qualified immunity is potentially lost if the conduct of the officials violates constitutional rights in ways that “a reasonable person would have known.”
It was that threat, to breach the shield of qualified immunity that appeared to be on the basis of Thomas Marshall’s presentation to council.
The heated exchange did not last long, but it was no less volatile for its brevity. A settlement offer has been promised. Looming over any settlement negotiations seems to be the prospect of counter litigation.
Absent a settlement; the borough is attempting to take the case for the desired amenities at the marina to the state’s highest court.
The defendant, in turn, is threatening action to breach the seal of qualified immunity and hold borough officials personally liable for federal civil rights violations.
On a night when Hudanich’s opening remarks called for a commitment to civility in public comments before council, things got ugly quickly.
To contact Vince Conti, email vconti@cmcherald.com.