Thursday, May 5, 2016

The facts regarding council action of Mon, 5/2/16. Protecting endangered land, managing vest rights inherited from Miami-Dade County.

Please review this rather long post.  This is my best effort at correcting the record:

 The Village of Palmetto Bay residents are being misled to believe the village has issued a building permit when in fact the village has modified the plan to reduce density, add a public park and put in a provision to conduct a traffic study for the Palmetto Bay Village Center.  The bottom line, this plan has no greater impact than what was previously approved by the village council.  It is time for Palmetto Bay residents to check the record to see how Palmetto Bay has now preserved 40 acres, now protected forever from a developer’s bulldozer, by transferring the potential development rights for 85 units from the 22-acre site along Old Cutler Road to the interior of the PBVC. We have slowly chipped away from a pre-incorporation massive starting point of 1,465 units and the potential of up to 1.25 million commercial sq. ft., down to the 485 units capped by Council action on Monday, May 2nd.  There are a lot of added benefits that came with the transfer such as more green area, a public park for the residents, the protection of 22-acres from development, new traffic requirements that was never present before, limited growth of the commercial structure, and interim use of an existing building for classroom space and senior programing.  There are the protections installed – and most important of all, as I explain further in great detail below, no actual development has been approved.  It can only move forward after future zoning hearings – public hearings and detailed action. 

We have worked over the years to reduce traffic impact.  There are NOT 400 new units. We are working to manage and reduce this project.   The truth is that over the years we have carved out – taken away, reduced, removed over 1,000 potential units from the PBVC. That’s traffic impact beneficial to our community!

I can understand when political candidates distort the facts for their political gain.  But it is surprising when such distortions are promoted by sitting council members and efforts are made at dividing this community.

History of the Burger King, now PBVC Site:

The property in question – originally the Burger King World Headquarters, now known as the Palmetto Bay Village Center (PBVC) was once a site slated for very dense development.  When Burger King purchased the Old Cutler property in the late 70's the County approved rights of up to 1,465 units on this site.

In 1985, Burger King got an approval to build and 311,000 sq. ft. of office space was constructed.  But, the site had rights to build approximately 1.25 million sq. ft. plus an undetermined amount in the rest of the property.  That, for the record, is FIVE TIMES the size of the building that exists today.

These rights traveled to the new owner when Burger King sold the property. This means that PBVC purchased the property with certain rights attached (described in the paragraph above.)  The government cannot simply take away these rights, except through the court system or through agreement with the property owner. It was the latter alternative that we sought to do.

Village Mixed Use District (The “VMU”)

In 2004 a charrette process was done that included 590 units, commercial space, a school and hotel which went through a public process – 42 public meetings were held.  The process resulted in the 2008 adoption of the VMU (Village Mixed Use district).  This VMU was a significant reduction and not an expansion of the rights granted to the property from prior County actions.  Where there had previously been up to 1,465 units or approximately 1.25 million sq. ft. of commercial, the new VMU limited development to 400 units, a hotel and about 550,000 sq. ft. of commercial, down from almost twice that.  It left the front 22 acres to be determined at a later date based on a trending of development rights.  Note that the 22 acres in dispute were not included in the VMU.  Since, I have been trying to save the 22 acres from development without unilaterally taking away property rights.

Resolution no. 09-11 was passed on January 12, 2009, during my prior term.  The goal contained in the resolution was to try and acquire this parcel with help from the Environmental Endangered (EEL) Funds from the County.  Why? To ensure they would not be developed.  That goal, however, was seemingly dropped by the subsequent council (which included the present Vice Mayor) – No action was taken on it after I left office in November 2010.  Now ask yourself, why would the initial council attempt to get the County to buy lands that some argued were “protected”?  The answer is because the lands were endangered – meaning they were threatened by potential future development.  Th2 22-acre parcel was under a covenant requiring a visual landscape screen to block the view of the commercial building from Old Cutler Road, not a ban from development.  The facts of the covenant were discussed in detailed by our village attorney at the council meeting of Monday, May 2nd.  The covenant could survive no more than 30 years, and the visual screen requirement expires in 2019.

The previous council (serving during 2010-2014) also had a proposal to build houses in these very 22 acres, deferring only temporary (until the process ended with the 2014 election).  Factual information can be found online - See the 7/22/2014 article, Palmetto Bay council defers old Burger King property zoning; approves Palmer Trinity’s site-plan changes, by Lola Duffort .  Note the effort was deferred (e.g., meaning to be taken up again at a later date) NOT denied.

It is also interesting to note that Vice Mayor Dubois recused himself from that vote in 2014 (as he did on the first reading of the latest action, yet ‘un’recused himself and participated in the final vote on Monday, 5/2/16, but ONLY after sending out an inflammatory, factually incorrect and self-serving press release on the same date).

What really occurred on Monday, May 2, 2016?

There was no “Final approval” for construction granted to any of the 485 units.  Remember, 400 were already authorized under the previous plan, so the issue centered over the 22 acres not part of the VMU. 85 units were determined to be the smallest supportable number and then those rights were sifted to the VMU.  As far as development is concerned, the Council vote Monday night did not approve or grant 485 new units.  Simply stated, the vote moved the owner’s developmental rights for 85 units from the 22 vacant acres to the interior (VMU) of the PBVC.

This was a change to the long range plan of the PBVC – part reclassification, part determination and settling of the development rights of the 22 acres and a shifting of those rights AWAY from Od Cutler Road and the adjoining neighbors.  The plan also amended the existing 400 units from partial senior housing to conventional units.  A traffic study commissioned by the village documented the lack of traffic impact from the change in designation. 

And to be blunt, ZERO units is not an option.  Historically, we have been working our way down from the original 1,485 figure.  It is an undeniable fact that I, we, have worked with the property owner over the history of these proceedings to reduce the impact on our community to the greatest extent possible.  Yes, from the owner’s original rights to 1,485 units and the possibility of up to 1.25 million commercial sq. ft. DOWN to the 400 units on the VMU property (obviously not including the disputed 22 acres). 

And, I cannot restate this enough - the property owner cannot build any of these units without going through public zoning process and obtaining approval after public hearing, and after considering the newly imposed traffic requirements placed on the property by the Schaffer amendments. So why all the misinformation that makes it appear that there will be a start of construction? Why no mention of the newly imposed traffic protections requirements?

Why 85 units on the 22 acres by Old Cutler Road– where did they go?

The Village has professional staff.  We have a Planner and a Village Attorney.  The evidence presented was that, if the owner of the PBVC were to attempt to sue for full rights on the 22 acres, he could claim between 85 units, which represent the lowest supportable number, to a maximum of 220 units, which is likely not supportable if challenged.  A court could easily find that the applicable number is between 85 to 165 units.

In the end, 3 of the 5 council members went with the lowest number – 85.  Based upon this number, the 85 units were transferred (not granted ‘final approval’ for actual development) and the long disputed 22 acres will now be transferred from the PBVC to ownership by the people of Palmetto Bay.

This is a great day for Palmetto Bay and for everyone who values preservation of endangered lands. We have a park, not more development on Old Cutler Road.

The ever shrinking hotel

Remember the hotel (few do).  Three out of five members of the village council further restricted the developer's rights by reducing the number of units to 485 inclusive of the hotel – this means that each hotel room built takes an entire unit off the property.  This is a further reduction, far from any expansion, of the vested property rights of the PBVC.

Shrinking the future commercial space

The majority vote from 3 out of 5 village council members also effectively limits the office space to what they currently have (remember – what they currently have there now is one-fifth of what could have been built out there under original county plans).

Adding traffic limitations – a new protection

Councilman Schaffer offered an amendment that was accepted and we went even further to require traffic studies in an area that is exempt from such studies.  This is a new level of protection for Old Cutler Road and will work to ensure that the impact is minimized.  The 400 units cannot have a greater traffic impact that the prior vested right of 100 town homes and the 300 senior housing.

What did Palmetto Bay gain in return? Your park, our piece of mind.

The Transfer of developmental rights (the 85) has the added benefit of preserving a natural forest area, reducing development. 

Senior programing anyone?

The Vote from 3 of 5 council members also allows for the use of building C (an existing, currently little- used building) by the Village as  interim space for senior programming and classroom areas.

The real “Sad Day” for Palmetto Bay

It is incendiary to incite residents with unsubstantiated emails and comments that we approved 485 NEW units to be built.  We built the barn, but the horse has not left the barn. Far from it.

The truth is what was approved has less impact than what has been approved in the past and this does not mean that any of these units will ever be built. (It is equally foolish to try to claim that only a few or none of these units will ever be built).  In the end, 3 out of 5 members – voted to cap the number of units, not permit them to be developed.

Perhaps the two dissenting council members would prefer that the 22 acres eventually be built out, devastating a current stand of nearly extinct Miami-Dace County Pinelands and lush hardwood hammock.  Perhaps the two dissenting council members would prefer to allow the possibility of the property to be developed based upon 80 acres, not the 40, that we, the 3 members of the village council removed from the developer’s possession, and, therefore, the calculations.

I personally find it very distasteful that those on the losing end would be so disrespectful to our residents and to this council by trying to divide this village with the same tactics that current members of this council (inclusive of a future political candidate) so fervently criticized in the past.  I know that the Palmetto Bay residents have not yet forgotten the hard lessons of the Palmer litigation.

Quasi-judicial decisions require evidence, not sensationalism and political gamesmanship

Part of the village action taken on Monday night were what is known as “quasi-judicial” – this means that decisions must be supported if challenged and must be based upon the evidence presented, not emotion – and certainly not based upon scare tactics, mistruths or vitriol.  We as a village face issues always but you elected us to make the hard decisions, not to allow the courts to make them.  A quality leader would work (as 3 of the 5 did) to avoid returning this village to Palmer style issues (though, for some, the politics of division does play well at election time).

The 3 majority members of the village council could have taken the politically expedient course and voted no, and played the “we defended the neighbors’ card” – which was the tone set by the inaccuracies that were circulated.  But this would only show weakness, an unwillingness to lead and would have simply allowed the courts to overturn a decision based upon political pandering, unsupported by the record, and then determine the maximum, not a reduced property right (at potentially huge legal costs to the taxpayers). By making this decision, we have controlled the number of units allowed to be built and the area upon which they will be built, rather than leaving us at the mercy of the courts.

Focusing on traffic

We know and understand that traffic is the number one priority to all of us, but we know that we cannot place a moratorium on vested property rights.  We have to focus on what we can do to help minimize traffic.

Some final thoughts, and a request for civility and to retake the high road

Property owners have vested property rights.  We must follow the law.  It is easy to simply say “stop traffic” and issue blanket denials, but failure to follow the law will only result in renewed Palmer style litigation.  Perhaps that is what certain council members and political office seekers would prefer – political grandstanding, and then the ability to blame the court for granting even greater property rights to the property owners.

Ask yourself if you want to hear the facts and have leaders who actually lead or do you prefer the politics of misinformation, grandstanding, passing the buck and resorting to being defendants in litigation through pushing the hard choices off to the court system.

3 out of 5 council members listened to the evidence and then made the right decisions for Palmetto Bay residents that further reduced the overall density on the PBVC property, obtained park land and will increase traffic protection when and if any of the residential units move forward to zoning. 

Ask yourself, who on the council (I respectfully suggest it is the 3 of 5) who are leading this community; trying to make this community a better place. And who is merely trying to defame reputations with misinformation simply because their either did not get their way or for political gain at the expense of our sense of community.

I ASK US ALL TO STOP, ASK US ALL TO WORK TOGETHER and, if we disagree, to discuss it peacefully and professionally at an open council meeting, not behind closed doors. 

Thank you for taking the time to read this rather long explanation.  I remain available to discuss your concerns.

Very truly yours,

Eugene Flinn, Mayor