Thursday, June 4, 2020

A ticking time bomb for village residents. Deadlines are here. Are Palmetto Bay officials properly prepared to defend residents in the Bert J Harris claim filed by LUXCOM?

June 11, 2020, will be a very important day for Palmetto Bay residents.  Deadlines are approaching. Has anyone heard anything relating to Palmetto Bay aggressively defending the 1 unit per acre zoning put in place for the LUXCOM property? Defending the Bert J Harris claim served by LUXCOM (VIEW HERE)

The timeline is important - the 150 day pre-suit period expires June 11, 2020 (unless an extension was agreed upon). Palmetto Bay was required to either make a written settlement offer or state that Palmetto Bay will take no action. 

Settlement must be reached during this 150-day notice period, if not the risk to Palmetto Bay residents is as much as $21,760,000.00.

The word is that negotiations have been ongoing; that the Village of Palmetto Bay has made the following offers to LUXCOM (note that it appears there is nothing in writing):
  • 145 units (which is significantly more than the 1 unit per acre limitation imposed by Palmetto Bay - promised to residents by this mayor and council)
  • Revert the zoning back to "institutional" but specifically excluding a use for a hospital, or
  • Participate in binding arbitration.
My first question is what authority does the Village Attorney have to make these offers? Is there an agreement between the mayor and village council members? There were no executive sessions - these are held outside of public view, but transcripts are recorded and those are released to the public after the litigation ends. Are the offers made in a "If we, would you?" sense, requiring approval by the village council after a public hearing? Or as alleged through an anonymous source; were the council members polled?  Polling would be troubling as that is a question in the abstract and removes the public and public hearing from the ongoing zoning issue.

This is not poker where players are dealt random cards from a deck, and which the cards are unknown to other players. There is an art to bluffing in poker. But litigation is not poker. We are dealing with real life issues with $21 Million liability to the village taxpayers plus future development at stake. Palmetto Bay can't hide our cards in this real life claim of Bert J Harris. It is tough to properly evaluate without seeing the preparation, the due diligence, of Palmetto Bay in defending the residents on this attempt to dramatically upzone this property. 

Another concern is arbitration. I have no confidence in this administration in binding arbitration - why? Arbitration sounds a lot like the 12/12/2019 dispute resolution event in an unrelated case against Miami-Dade County for traffic signs. That did not go well for Palmetto Bay – see: January 7, 2020, South Dade Updates Guest Blog- view of the 12/12/2019 Palmetto Bay / Miami-Dade County conflict resolution proceeding [Let’s hope the Village has learned from this 12/12/2019 debacle and will be better prepared for this round involving a potential $21,700,000.00 plus Bert J. Harris claim – we are talking serious money $$$ ($21 million plus) here, not stop signs].

Does Palmetto Bay have evidence in support? Has Palmetto Bay obtained its own appraisal in opposition, I don't know what concerns me more: obtaining an appraisal that confirms LUXCOM's claim of $21 million in damages or failing. Luxcom has an appraisal to support their claim of $21,760,000.00. Do we, the residents of Palmetto Bay, have an appraisal to defend this case, to show that the zoning/comp plan decision to 1 unit per acre did not cause any decrease in the value of the property?

Fair questions:

  • What is the plan to defend the LUXCOM claim?
  • Has LUXCOM agreed to an extension to the June 11 deadline?
  • Has Palmetto Bay obtained a counter appraisal?
  • Will Palmetto Bay officials hold the line on the single unit an acre as promised at hearings as well as in the 2018 election?
  • Were any other details discussed in the negotiations, including, but not limited to: road improvements at cost to LUXCOM, public access to the boat ramp, any land for a public park, or parking for the Deering North park property?
This is a lead in to some small bite articles detailing this important LUXCOM issue. Watch this space for update articles.

Is this yet another example making promises and then failing to deliver? Posturing and delay over resolution in line with the promises? Many are shocked that the Mayor Cunningham's administration has recently endorsed 480 units for the Palmetto Bay Village Center (PBVC) (see the Interim Manager's report). This after an election where the her promise was to stop the alleged over development. (See June 2, 2020, 480 Units at the Palmetto Bay Village Center - Village tax dollars were used to create a record that supports the applicant for this zoning hearing. Is this what you voted for?). We are all waiting to see how this "480" recommendation shakes out when and if this actually goes to an actual zoning hearing where the votes are taken. Or will the PBVC be also settled through subsequent court action, where this mayor and council can claim plausible deniability? 

Now we, the residents, need to be concerned whether there is even more political backpedaling, this time on LUXCOM. The one unit an acre zoning was represented as fully defensible by both the Mayor Cunningham and Vice Mayor DuBois. If it ism then why the offer for significantly more units? Once again, the issue is whether this promise and council action - setting one unit an acre - will be aggressively defended or will the political realities and promise breaking rear its ugly head once again. 

The bottom line: LUXCOM has few true expectations of unit rights. Why?

  • They purchased a property known to be contaminated. A known health risk not just to the site, but to surrounding areas.
  • Due to the contamination, there is a valid argument for ZERO units per acre.
  • The majority of the site had only been used for power plant production, not residential (and is also the reason for the contamination).
  • The area to the north is in a differing jurisdiction, Coral Gables - which has its own zoning / land use codes, rules & regulations; what I considered to be a 'hard wall' against liberally applying any trend of development into Palmetto Bay.
  • The area and few houses (caretaker houses) were zoned 5 unit and 1 unit per acre in the applicable close proximity. This would support reasonable zoning decisions of between 15 - 65 units on this entire property.
  • Hearings were held on the legislation establishing the 1 unit per acre designation.
  • (There are many more reasons not included here)
LUXCOM is significant. This may be the first time ever that a Palmetto Bay mayor and council upzone any property, increasing density. This property has important distinctions from the Palmetto Bay Village Center (PBVC). First of all, back in the 1980s, the PBVC won a court-order right (against Miami-Dade) to over 1,400 residential units on the 80 acres long before Palmetto Bay residents ever though of becoming a municipality. Palmetto Bay officials have worked hard to whittle down the number of units over time. LUXCOM is an attempt to actually INCREASE the number of units.

The tool box:

January 22, 2020, LUXCOM and the Bert J Harris claim against Palmetto Bay: Is the planning letter of November 30, 2018, a "$21 million dollar letter"? Is this a $21 million dollar letter? Luxcom appears to believe so.

January 17, 2020, A medium length primer on Bert J. Harris Act claims. What we can expect (including a timeline). Link to Bert J Harris Act provided.

February 9, 2020, Property analysis - the tool box - trend of development report prepared by the firm of Calvin, Giordano & Associates, Information relevant to the Luxcom Bert J Harris Act claim (part of a series).

January 8, 2020, Miami Today (online version) Palmetto Bay hospital zoning battle in court - Written by Gabriel Poblete on January 7, 2020

There are a total of 31 blog articles relating to LUXCOM - CLICK HERE

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