An (unofficial) update on the Palmer Zoning litigation; Palmer I, II and III. The present standard of court review

Unfortunately, the current Palmetto Bay council is led by a Mayor and Vice Mayor who appear reactive, rather than proactive in their performance.  This has led to the constant need for prodding from those outside the council to push for a return to more transparency and place information into public view. 

Any copious reader of the deep crevasses of the village web site and agendas can now begin to find that there are litigation reports made public.  And all this after the Mayor Stanczyk accused me of asking them to “break the law”. She actually went further and stated that “He was advising us to break mediation and break confidentiality. Those are things you don’t do. He has told us to break the law and to put our village at risk.”  See the Miami Herald article online, January 10, 2012, Palmetto Bay to appeal court decision on school expansion.

My response is contained in that article.  Hardly.There is no reason to hide public information and true intentions. I would personally like to thank current Council member Howard Tendrich who singlehandedly pushed to have litigation information posted on the Palmetto Bay official website and into public view. 

As I have stated previously, there needs to be a return to a true interactive process in Palmetto Bay, a process that unfortunately has come to a screeching halt with the current Mayor and Vice Mayor.

What is it that the current Mayor and Vice Mayor don't want the Palmetto Bay taxpayers to know?  

Fortunately there has been a groundswell of concern coming from my fellow residents, both seen in public as well as expressed privately to the council members demanding increased accountability and real disclosure, not just unindexed information out for the web surfers to incidentally come across.  

The right to know through open discussion versus forcing residents to engage in "a hunt for scattered information"

I am posting this article not because I am taking a side.  I am posting this article because you have a right to know, regardless of which side you are on in this very decisive issue. I do not agree that posting a 25 page legal brief, especially unannounced on the front page of an official website infrequently viewed is transparency.  I say it is burying the information and breaking up the relevant information in a manner that would challenge the best scavenger hunter.

The results of this litigation will have a much more profound impact on the finances and future direction of Palmetto Bay over any one person winning the Miami Herald's Tropic Hunt.

It is strange that now there is a quality legal report that is posted by the Village Attorney in the current Palmetto Bay agenda – Click on to view the Village Attorney Update, dated February 6, 2012. Scroll deep - the information is contained back on page 6.

This information, technically listed, but certainly not openly mentioned to web site readers, hardly disrupts Palmetto Bay village official business, so why does it take so long to come out and placed so matter of factly?  No one is asking for the internal legal theory, if there is one, but let’s lift a veil from the secrecy and explain to the taxpayers who have invested so heavily in this litigation how far this litigation has progressed.  

Litigation timeline of PALMER I, II AND III

I have put together a timeline and explanation of the Palmer litigation to date.  Please note that no laws ‘were broken’ nor was any attorney/client privilege violated.  Just click "Read more" below to view.  The timeline and narratives are all based upon materials, dates and information clearly out in the public domain, but I have tried to compile in here, accessible through one source designed to aid in the understanding of the present posture of the appeal.  No one event defines the current status or scope of the present litigation. It all needs to be put together and placed into a timeline.

It is also important to note that I am only discussing the zoning matter, which I refer to in the current set - PALMER I, II, and III, not any of the other law suit(s) filed by Palmer for damages against Palmetto Bay.  Those are separate matters entirely for another time.

The two recent court orders were rendered on February 11, 2011 and then on December 23, 2011.  But let’s review some of the proceedings that bring us to the present zoning litigation:

PALMER I

Palmer one was the 2006 – 2008 zoning application proceedings which resulted in the first Palmer zoning hearing which denied the application by Ordinance 08-06, on the basis that the rezoning sought by Palmer was not consistent with the Village's Comprehensive Plan and Future Land Use Map," and that "Palmer Trinity failed to adequately establish through its traffic studies that its site specific application is compatible and within the proper level of service, and failed to establish the proposition that the proposed use would not negatively impact the community. . . ."

A first level appeal was taken by Palmer resulted in a victory for Palmetto Bay.  The decision was affirmed without any written opinion by the Circuit Court.  A Writ of Certiorari to the Circuit Court for Miami-Dade County, Appellate Division. Lower Tribunal No. 08-245-AP.  

A second appeal, this time to the Third District Court of Appeal was taken by Palmer.

This resulted in the Third District Court decision of Palmer Trinity Private School, Inc. v. Village of Palmetto Bay, 31 So.3d 260 (Fla. 3d DCA 2010)., ruling that the circuit court appellate division departed from the essential requirements of law in upholding Ordinance 08-06

The appellate court reversed the one victory Palmetto Bay had on appeal, The Judges of the Third District hearing the appeal agreed with Palmer Trinity that the Council decision resulted in impermissible "reverse spot zoning."

The Third District ruled in Palmer I that the Village's actions were legally impermissible. Palmer Trinity was "entitled to have [its] property zoned based on proper zoning concepts without regard to the one particular use which the owner might then intend to make of the various uses permitted under a zoning classification. A zoning authority's insistence on considering the owner's specific use of a parcel of land constitutes not zoning but direct governmental control of the actual use of each parcel of land which is inconsistent with constitutionally guaranteed private property rights."

PALMER II

No further appeals were taken.  Instead this matter ultimately came back to the Palmetto Bay Council for further proceedings, including the second zoning hearing of May 4, 2010.  The issue of whether to rezone the property was resolved by the court in Palmer’s favor.  The May 4 zoning hearing involved site plan review, including the number of students.  Palmer reduced the number of students sought from 1,400 down to 1,150 and withdrew three other variances from its application.  This is the hearing where then councilwoman, now current mayor, Shelley Stanczyk, brought forward her proposal for the 900 student cap, after all testimony had been presented. 

This cap and the staff recommend condition of a moratorium against side modification for a 30 year period were to the two items struck down by the court in the order of February 11,2011. 

Note that no direct appeal was taken within 30 days of the February 11, 2011, order by new/current Palmetto Bay council, which had taken office back in November 2010, nearly 3 months prior to that decision relating to the May 4, 2010, zoning hearing. 

Here is the list of important filings.  These pleadings are public record and could be put on line for full viewing, if the current council so desired:

April 12, 2011, Palmer filed its motion to Enforce Mandate (post 2/11/2011 order).

May 5, 2011,   Circuit Court grants Palmer’s motion to Enforce Mandate.

May 18, 2011, VPB files a Motion for Clarification of the Court’s May 5, 2011, order.

June 1, 2011, Court grants VPB’s motion for clarification instructing VPB .

July 12, 2011, Palmer files “Renewed, Emergency Motion to Enforce Mandate or. Alternatively, to Enjoin and Prohibit Respondent (VPB) from Violating the Express mandate of this Court. 

Palmetto Bay responded on July 15, 2011, opposing this motion, stating that PTS’s concerns were “unfounded.”  

Palmer’s July 12 motion was denied on July 18, 2011. 

PALMER III

The next day, July 19, 2011, the Village Council held the third Palmer zoning hearing, Palmer III.  This was the hearing where the current village counsel, having been instructed not to place a 900 student cap, determined that instead it was taking no action on the previous cap, thereby placing a defacto 600 student cap on the number of students.

August 26, 2011, PTS files the Motion to Enforce mandate or, in the Alternative, for Extraordinary Relief.  

Now we get to where Palmetto Bay begins to file the information.  The official website now has a "Litigation" tab under the "Information."  Here you can find a link to the December 22, 2011 decision quashing the July 18, 2011, zoning decision by the new/current council.  The decision is rendered as an enforcement proceeding, not as an appeal by Palmer. 

Palmetto Bay has now filed its brief entitled Petition for Writ of Certiorari with the Third District Court of Appeal (filed January 23, 2012) seeking a discretionary review of the proceedings that have struck down the 900 student cap.  It is important to note, but this Palmetto Bay Council is not disclosing, that any opinion of the Third District Court will not make Palmer "go away." There is no appeal or even the slightest argument that the past decisions can ever return the case back to the original 2008 complete denial. 

The Process 

Once the Palmetto Bay Council renders a zoning decision, an applicant has the right of appeal to the circuit court, which sits in a three judge panel in an appellate capacity.  The circuit court has now heard Palmer I (affirming Palmetto Bay’s first opinion, which was later overturned by the Third District Court of Appeal); Palmer II (February 11, 2011, opinion) and then the most recent Palmer III opinion (December23, 2011, opinion).

There are two main methods for appellate review.  Each has an entirely different “Standard of Review” This can be more commonly expressed as what it will take to get the order you are appealing set aside or reversed. 

The first is known as a direct appeal.  The order appealed from has what is known as a “Presumption of Correctness."  Palmetto Bay does not have a right to a direct appeal in this litigation.

The second method is more of an appeal of last resort and comes with a much more difficult standard.  This appeal is known as “common law certiorari.”  This is not a direct appeal which is usually available as a matter of right.  This is known as a discretionary appeal and requires that the reviewing appellate court find that there was a “departure from the essential requirements of the law” from the lower court, after the Circuit Court issues its decision acting in its appellate capacity, the losing party may petition the applicable District Court of Appeal for a Petition for Writ of Common Law Certiorari. Rule 9.030(b)(2)(B), Fla.R.App.P. The standard of review in the District Court of Appeal of such Circuit Court decisions is most onerous:

It is important for the Palmetto Bay taxpayers to be told of the important distinction between review by direct appeal and the current Palmetto Bay attempt for review by common-law certiorari. A district court may refuse to grant a petition for common-law certiorari even though there may have been a departure from the essential requirements of law.

Once the circuit court, sitting in its review capacity, issues a decision, a district court has discretionary jurisdiction to review the circuit court's appellate decision through certiorari. District court review by certiorari of a circuit appellate decision, however, is extremely limited. 

Review through petitions for certiorari, as filed by Palmetto Bay on January 23, 2012, is known seeking as a "second-tier" review.  It is very important to note that a "second-tier" review is not available as a matter of right as well as governed by a much stricter standard.  The standard pronounced in court opinions governing this form of review is that certiorari review is limited to those instances in which the lower court did not afford procedural due process or departed from the essential requirements of the law. 

This maintains the district court's jurisdiction to review a circuit court's appellate opinion, while reinforcing the principle that a party is only entitled to one appeal. Accordingly, certiorari review can actually vary within related proceedings--serving first as a method of guaranteed review in a circuit court for a quasi-judicial decision for which no other review exists, and then as a limited mechanism for further review of that circuit court's appellate conclusion.

Goals of the council: 

The goals of the Council are really what need to be discussed.  What is no-longer at issue:

Rezoning the property, the district boundary change from the prior Agricultural zoning classification.

The physical site expansion of the school

What appears to be at issue is whether the school will be granted the 1,150 students sought in the application or whether the 900 student cap placed in Palmer II can be reinstated.

Simply stated - is this fight over 250 students? 

Is the Palmetto Bay Council engaging in this ongoing litigation over 250 students (the difference between the 1,150 application and the Palmer II 900 student cap).

It appears so.