Update on development issues relating to the Palmetto Bay Village Center. Reviewing the staff updates to weigh our best options

A Special council meeting requested by David Singer was held on Monday, April 2, 2018, regarding the Palmetto Bay Village Center (PBVC) legislation. On March 19th during the zoning hearing, the Village Council considered an agenda item seeking to repeal the zoning regulations adopted through an ordinance 2016 for the Palmetto Bay Village Center and revert to regulations adopted in 2008.  During the Special Council Meeting this past April 2nd, the Village Council once again discussed the VMU zoning designation for the Palmetto Bay Village Center at length.  Councilman Singer, the sponsoring Council Member for an alternative ordinance, presented the differences between the regulations of the 2008 Ordinance and his amended one. The Village Planner, our Traffic Consultant and Village Attorney discussed historical and zoning background and answered questions to provide clarification between pending legislation and the impact of competing ordinances. CLICK HERE to view the video of this Special Council meeting.  The meeting should be an eye opening for many. Numerous presentation boards created for this meeting to address the differences between his amended/clarifying ordinance (which passed on a first reading 3-2) from the ordinance that repeals the 2016 ordinance entirely.  (CLICK HERE to view the presentation boards)  Here is what the facts show:

·       The 22 acres have development rights. There are NO covenants prohibiting development. Our village attorney clarifying that ‘any attorney opining otherwise is committing malpractice’.

·       All village planners, past and present, agree that the 22 acres are in fact developable. Past and present village attorneys have opined that these 22 acres are developable. The land is an Interim Zoning district.

·       A DERM vegetation management plan is NOT a covenant prohibiting development.

·       The Village Planner explained that this land was once part of a general zoning under a long-past county plan that predated Palmetto Bay.  This designation had at one time provided for 1,400 residential units located throughout the overall property.  This was prior to the Burger King World Headquarters.

·       The maximum development allowed under the 2016 ordinance is based upon a traffic study – The traffic study cap/requirement is REMOVED if the ordinance is repealed. The 2016 ordinance places a real cap on development at the Palmetto Bay Village Center.  This was a negotiated cap.  Therefore, a repeal of the 2016 ordinance would remove it and create uncertainty, risk of greater traffic.

·       304 units, not 389, is what the PBVC is limited to if the developer refuses to deed over the 22 acres (you can’t keep your property and transfer developmental rights too).

·       The maximum number of units drops from 400 to 304, from the 389, if the developer refuses to deed over the 22-acres to the Village.

·       The clarifying ordinance and the numbers determined by our Planner can reasonably be defended in court, much more than a full repeal, as it is based upon the evidence as it is based upon competent substantial evidence.

·       The repeal would re-establish the development of 400 units plus the development rights associated with the 22 acres and a hotel as well.  The 2014 attempt to allow development in the 22 acres involved an initial 41 units, but placed that land at risk for a maximum up to 220!

·       The risk of a hotel is real, as hotels are commercial uses, not residential, not subject to the 100/300 units in the 2008 ordinance. Hotel units generate significantly more traffic than residential.

·       If, and that is an “if” the PBVC ever built a hotel, it would be limited to a maximum of 189 hotels rooms (exhausting any right to any residential) or would drastically reduce any residential if less than 189 rooms are built as hotels generate no hotel and a maximum of 389 units under the 2016 ordinance, versus unlimited development of a hotel (at a much higher traffic count that residential units) and 400 units plus the development rights to 85 units or more in the 22-acre buffer area, if the 2016 ordinance is repealed.

·       Less traffic will be generated through the traffic controls agreed to in the 2016 ordinance and demonstrated last night in the presentation. Repeal reopens the Palmetto Bay Village Center to risk of aggressive growth and substantially higher traffic counts.

·       The PBVC is the last piece of property in the “Urban Infill Area” (properties east of 77^th Avenue).  Properties located within the Urban Infill Area are not subject to the same traffic concurrency requirements, therefore there is no traffic restrictions with a repeal but there is with the 2016 ordinance (77^th Avenue ends at 184^th Street).

·       Repeal of the 2016 opens the 22 acres to development at 5 to 10 units per acre (applying simple math shows the risk to be 110 to 220 units in addition to the hotel units and 300/100) for a potential total of 620 units and in addition the real possibility of a hotel.

·       The 2008 ordinance was adopted unanimously- 5-0 - after over 40 public meetings were held and included the public Charette process (The Charette report was accepted in September 2004).

I am always willing to listen to alternatives. That is what a public process is about.  But why not argue the merits of the 2016 traffic controls placed in the 2016 ordinance.  Offering only ‘don’t be afraid to litigate’ is not a good option.  We need to be proactive and find real solutions. Did Palmetto Bay learn nothing from the Palmer and Charter School litigation? Both BIG losses as the Court recognized the property development rights in both cases over the simple denial of development by the Village Council.

Legislation versus a zoning hearing:

I offer the above on the legislation, separate from the zoning hearing that will be held late this year.  The Mayor and Council essentially sit and act as judges in a quasi-judicial proceeding – matters such as the Palmetto Bay Village Center – at any zoning hearing. I have made it clear that I will continue to conduct myself accordingly. Any discussion based upon political catch phrases and emotion, ignoring the evidence would not be defensible in court.

The opinions above are consistent with the near action taken in 2014 where prior Mayor Stanczyk attempted to development of those 22 acres. That effort failed due to political reasons, not due to legal barriers – the 2014 staff report NEVER claimed any inability to deny that development due to any alleged covenants. The proceedings leading up to the 2016 ordinance arose directly out of concern that those 22 acres would in fact be developed. It is my goal that the 22 acres must be protected.

The Court rules on the evidence and law, not emotional wants or political statements.

Elected officials need to be honest about property rights and cease the false contention that a property has no rights greater than what currently existing on a property. 

It takes true leadership to speak the truth about developmental rights.  It is tempting to hide behind political rhetoric and let the courts decide. Of course, that what we saw in the Palmer litigation - years of politically fueled litigation entanglement that led to approximately $1 Million – that’s right, $1 million in hard monetary costs to our Village.  And, in the end, the prior administration ended up totally capitulating after years of assurances of litigation success.  See:  Palmetto Bay approves Palmer Trinity expansion, by Lola Duffort, Sept. 26, 2014, documenting that the Village gave back all gains in the zoning issue, releasing about 80 conditions. All of this could have been resolved years earlier through rational compromise, but the politics got in the way of common sense, as well as, in my opinion, a failure to own up to basic legal principals.

The article details include:

Mayor Shelley Stanczyk made a point of underlining before the vote that all was not said and done with Palmer Trinity’s litigation outstanding against the village and some of its residents.

“We’ve been promised a new era tonight,” she said. “But I think that era only starts – in my estimation – when those lawsuits get dropped.”

Ball Mehta said on Tuesday that the school was looking to end litigation, but would not say whether or not it would seek a settlement.

“Discussions are going to commence and I anticipate that we will find common ground so that the parties can reach an acceptable resolution,” she said.

The bottom line is run for cover when your officials rely upon political tag lines and cute campaign sound bites, used far too often to gain populist appeal over truly serving the public good. I have followed much of this litigation on my blog at eugeneflinn.com. In fact, CLICK HERE to follow the “litigation” label you only need to scroll down 5 posted to read articles of how the Palmer litigation progressed.

The real issue is this – there are very real property rights vested in the PBVC site. Do we want to be proactive and limit development or fall victim once again to the political campaigns that want to litigate with our collective tax dollars and then ‘blame the courts’ for any adverse consequences?

Do we want to risk real controls agreed to in the 2016 ordinance by repealing it and having the courts decide.

In summary, the stakes are real.  We either engage and work to reduce our exposure using what leverage we have or turn the entire matter over to a court and risk a real unmitigated traffic disaster.