701 pages, 144 mb of lawsuit. I have posted a link to the Yacht Club by Luxcom v. Village of Palmetto Bay. A very long read.

The full complaint finally went public today (Tuesday, 11/10/2020). The LUXCOM complaint was filed November 05, 2020, but it was not visible to the public until it went through 'redaction'. I now know why it took so long, the entire complaint is a total of 701 pages (144 MB). 

701 pages CLICK HERE to download and view the entire 701 pages.

  51 pages CLICK HERE to view the smaller 51 page document, the complaint, minus the exhibits.

The tone is set in the Introduction, page 1:

This is an action in which Luxcom seeks to recover millions of dollars in damages from the Village based on its unlawful, inequitable, discriminatory, deceptive and bad faith actions and the Village ' s material misrepresentations by virtue of its silence and omissions/failure to disclose critically important information to Luxcom relating to its purchase of a large tract of undeveloped land in excess of 70 acres in Palmetto Bay for $33 million dollars and Luxcom's repeated attempts to develop the property which have been continuously thwarted by the Village. 

YACHT CLUB BY LUXCOM, LLC VS VILLAGE OF PALMETTO BAY, FLORIDA, 2020-023918-CA-01, filed its latest lawsuit, the formal Bert J. Harris claim, on Thursday, November 5, 2020.

The complaint does make for colorful reading. Beginning numbered paragraph 10, (page 4 of 51, or 701) Plaintiff describes the proceedings  as having been conducted in a manner …

(10.) … that rivaled the likes of the Star Chamber courts of England's King Henry VIII. During these sham hearings, the Village failed to comply with and properly apply its own Code and the proceedings discriminated against Luxcom and violated its due process rights - all in furtherance of the Village's carrying out its above described plan of severely limiting development on Luxcom's property. The outcome of these hearings (and enacting the ordinances) was pre-detennined by the Village whose Council did not act as a fair and impartial tribunal but, rather, as an advocate of its own self-sponsored ordinances.

11. The Village Council's lack of fairness and impartiality was on full display at these public hearings. The lack of impartiality was thrown into the spotlight when both Vice Mayor John Dubois (who served as the Village' s sponsor for the ordinances) and Council Member Marsha Matson (who, amongst others, campaigned for her Council seat based on promises of limiting development on the property to no more than one unit per acre) -- both failed to recuse themselves from the voting. They both voted in favor of what was a fait accompli - enacting the ordinances.

Please take the time to review this entire complaint. I am unaware as to whether the Village has been served with this complaint. Palmetto Bay will have twenty (20) days to file and serve its response unless the time is extended, which I expect to be extended given the depth of the issues as well as the length.

As previously reported, this latest case is assigned to the Honorable Martin Zilber, Circuit Court Judge, section CA 08. If this Judge's name sounds familiar to you, it is because Judge Martin Zilber recently rendered a Public Records Enforcement Order (VIEW HERE) against the Village/Elected Official in a lawsuit for public records filed against the Village of Palmetto Bay, as well as against a Palmetto Bay elected official, in case No.: 2020-020589-CA-01 after a full hearing held on October 14, 2020.

I will continue to take time to review this latest lawsuit and report on details.

See PRIOR RELATED POST:  November 6, 2020, NEW LAWSUIT ALERT: LUXCOM files another lawsuit against Palmetto Bay.

LUXCOM: Palmetto Bay's First MEGA development may be coming to Palmetto Bay. Unless you participate and say no, "not today!"

My fellow residents of Palmetto Bay – your attendance and participation is needed more than ever at the special council meeting of Wednesday, September 9, 2020. You must participate and object. You must place a backbone into our present mayor and council to stop this MEGA DEVELOPMENT.

I am shocked that this proposed agreement represents the positions of the parties after months of behind the scenes negotiations. Including actual negotiations through face to face meetings throughout 2020. This certainly is not the start. I am shocked that this proposal is even being allowed to come before the council in its present form. You really need to read the proposal in detail. This is not the promised development restriction of 1 unit an acre (which I believe would be 73 units). The proposal is not for 73 units, it is not for 145 that I alleged on June 4, 2020. This is a true MEGA DEVELOPMENT for 177 units – plus. Are you ready for what constitutes the pluses? Here is the long list of pluses to be shoehorned into these 73 acres: 

“guardhouse, guard gate, clubhouse and amenity center, boat house, private parks, tot lots, fishing piers, Jacuzzi, bocce court, gazebos, pergolas, fountains, basketball and volleyball courts, gym, manager’s office, catering kitchen, meeting room, fuel dock, repair/service facilities, swimming pools, swimming pool decks, swimming pools at grade, sundry shop, café, marina, dock master’s office, boat slips, launch and boat service, marina parking and amenity parking as well as other accessory uses”

That’s right “…well as other accessory uses” let’s not risk inadvertently excluding anything!

The agend fails to properly set the tone for this meeting. It reads as follows:

VILLAGE COUNCIL DISCUSSION AND ACTION ON THE DEVELOPMENT

AGREEMENT BETWEEN YACHT CLUB BY LUXCOM, LLC AND THE 

VILLAGE OF PALMETTO BAY, ATTACHED AS EXHIBIT “A”. 

I respectfully suggest that this agenda description be re titled to reflect what should happen:

PUBLIC HEARING AND DETERMINATION BY THE VILLAGE COUNCIL 

TO DENY THE PROPOSED DEVELOPMENT AGREEMENT BETWEEN

YACHT CLUB BY LUXCOM, LLC AND THE VILLAGE OF PALMETTO BAY, 

ATTACHED AS EXHIBIT “A”, SETTING THIS MATTER FOR A FULL AND 

UNENCUMBERED ZONING HEARING WHERE THE RESIDENTS MAY BE 

HEARD AND PROPERLY CONSIDERED.

For you GOT fans, To quote Arya: "Not today!" In fact, "Not today, not tomorrow and not in the foreseeable future!"

There are only two possible reasons for this MEGA DEVELOPMENT coming before the council as proposed: 

1. The mayor and council want to get everyone info a frenzy and look good by slamming the door and going to court to defend a Bert J Harris claim (which I preferred - in fact I ask that they do!).
2. The mayor and council will allow 145 to 177 units, but deny a significant portion of the remaining proposed scope [including, but not limited to the fuel marina, live aboards (increasing residential above the current proposed 177 units) , the MEGA amenities and any commercial that would expand this proposed development above a simply residential community]. (political gamesmanship of saying ‘it could have been worse) 

Everyone should be pushing for the nuclear option, #3 - DENY and defend Palmetto Bay in court. Hold an actual, properly noticed zoning hearing and determine reasonable developmental rights for this property.

But don’t say I didn’t warn you. This Luxcom matter is serious and I believe it has been treated as a political football, not a serious land development issue. CLICK HERE to read the full agenda and the proposed agreement.

The Project Plan consists of a residential community of up to 177 residential dwelling units and accessory uses as allowed within the PAD zoning district, including, but not limited to, an entry feature, guardhouse, guard gate, clubhouse and amenity center, boat house, private parks, tot lots, fishing piers, Jacuzzi, bocce court, gazebos, pergolas, fountains, basketball and volleyball courts, gym, manager’s office, catering kitchen, meeting room, fuel dock, repair/service facilities, swimming pools, swimming pool decks, swimming pools at grade, sundry shop, café, marina, dock master’s office, boat slips, launch and boat service, marina parking and amenity parking as well as other accessory uses as may be allowed in the PAD zoning district. The density and regulations governing the development of the Property, shall be as follows:

The administrative approval process by the Village shall not prohibit the development of the Project so long as the development is in substantial compliance with the Project Plan. The minimum lot sizes for the development will be 5,000 square foot lots and the setbacks listed above are recognized as the minimum setbacks for the Project Plan. The setbacks provided above are the setbacks requirements as measured to the structure of the homes and do not include additional and separate structures or terraces. To the extent that additional structures are provided on the lots, such as amenities for the residential homes, including gazebos, pergolas, swimming pools, swimming pool decks, swimming pools at grade, summer kitchens and other structures, the minimum rear setback will be 2 feet 5 inches for such structures. So long as the plan for development complies with Section 4 of this Agreement, the Developer shall be entitled to pull building permits.

Negotiations have been ongoing. Now there is a special council meeting set for Wednesday, September 9, 2020, in order to

PRIOR RELATED POSTS AND OPINIONS:

I posted my legal & personal opinions on Thursday, June 4, 2020, noting at that time that the Village of Palmetto Bay was alleged to have made the following offers to LUXCOM (noting then that it there was nothing in writing that was made to available to the public):

· 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 UNSOLICTED LEGAL PERSONAL OPINION? This needs to go to a full zoning hearing where the public can fully participate in evidence and the council needs to render a proper zoning decision – get back to the ‘promised ONE UNIT an Acre’!

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 more than 30 prior blog articles relating to LUXCOM - CLICK HERE

ALERT. A potential new Bert J Harris claim has been raised by Qualcom Palmetto Bay Active Zone Business, LLC. This should be discussed Tuesday, July 28, 2020

Good Grief! Here we go again. Will Qualcom Palmetto Bay be LUXCOM part deux? Let's hope not. I wonder if there is blood in the water? Perhaps Palmetto Bay officials need to go back to zoning hearings rather than piecemeal by Bert J Harris litigation as LUXCOM is starting to appear to be merely the first of what is feared to be the start of a Bert J Harris litigation avalanche. Precedents are being set where zoning decisions are being taken out of the Village hands and determined by the courts, where our fellow village residents have essentially no input into the decisions. See: July 13, 2020, LUXCOM - Tuesday, July 14, 2020 is mediation day. a day that will set the future of development in Palmetto Bay. Some thoughts. for background information relating to LUXCOM.

Now there is the probability of rough water ahead for Special meeting - Tuesday, July 28, 2020: Zoning Hearing (Comprehensive Plan Amendment, FLUM, & DUV Zoning District). (CLICK HERE to view this 9 page agenda package - as it was posted as of 3:30 PM on Friday, 7/24/2020) This is scheduled to be the final hearing to pass the DUV changes on second reading. Anyone that has been following zoning hearings know that they have been held and then reset to a future date due to the pandemic and resulting difficulties in holding live hearings. This one looks like it will move forward (and it should as village business needs to move forward). However, this DUV code rewrite is not moving forward under the radar, without notice of at least some of the affected property owners. The entire 1,392 page agenda can be reviewed (it is a long download) CLICK HERE.

Property owners with objections - Attorneys for Qualcom Palmetto Bay Active Zone Business have raised multiple objections to the code rewrite, placing Village Officials on notice of potential lawsuit. The main claim is that the revisions violate the Bert J. Harris Private Property Rights Protection Act (“Act”). Their objections are discussed in detailed further on in this blog post, as well as providing a link to the actual objection letter.

CLICK HERE to read this letter for yourself

So here were are - days away from the potential LUXCOM part Deux. It really isn't hard to see these issues develop. That is for those who pay attention. And that is one reason why I continue to express my opinions in this blog. You are reading it here so you can truly be kept in the loop. Important information is not being passed on to Village residents. Palmetto Bay officials were recently served with a letter from Litigation Counsel for Qualcom Palmetto Bay Active Zone Business, LLC, a Delaware Limited Liability Company. The sale of this property was featured in a prior related post on January 8, 2020: More real estate sold for redevelopment while the council continues to neglect the promised DUV rewrite. Bellsouth Building, south of Palmetto Bay Park is sold to investment group

Review that prior post. You will see where I stated in the opening line of that blog post that "Private enterprise keeps moving while the Palmetto Bay government sleeps, perhaps trying to get in under the wire, before any new zoning restrictions take effect." I mentioned in that blog post that it "... is unfortunate that these moratoriums/ZIPS were allowed to expire under Mayor Cunningham as of February 2019, prior to any of the promised revisions." This was not a prediction, as the current state of disarray is far to easy to foresee. The shoes are now dropping from the sky. The subject property appears to be one of those properties traded during the lapse in the moratorium. Now what? More tough talk and political promises (specifically the 1 unit per acre promise on LUXCOM) only to be followed by hiding being the 'threat of lawsuit' to give the developer (such as LUXCOM) what the developer wants? Yes, 'new direction' - everything done under threat of lawsuit.

FAIR QUESTION: Why can't critical updates such as this demand letter and the threat of pending litigation be disseminated to fellow residents at all, forgetting for the moment, as quickly as notification of an official village celebratory birthday or graduation drive by? Distraction over business. Village notifications demonstrate that news can be disseminated, but current officials instead have chosen to dull residents with 'bread and circuses' rather than actually keeping people in the loop and allowing for public discussion on matters of great public importance. 

There was a Committee of the Whole meeting held Tuesday evening, 7/21/2020. Another Special Council meeting was held Thursday evening, 7/23/2020. Nothing was said in public regarding this new probable lawsuit. This is important. This is a matter of public importance. Regardless, it appears that once again my fellow village residents will be treated like mushrooms and remain in the dark regarding this latest festering matter until village officials can figure out how they can best spin it. Drive by party caravan anyone?  Officials hoping things go away is no way to run a government!

Back to the developing litigation demand: The property owners object to the Revision as applicable to the Property, alleging that the village's recent changes to the code "...unreasonably, arbitrarily and detrimentally burdens (their) Property.” 

Specifically, the property owners allege that:

A. The Revision violates the provisions of the Bert J. Harris Private Property Rights Protection Act (“Act”). The Act is a mechanism to protect and compensate any Landowner whose Property is affected by Government action not rising to a taking. See Florida Statute Section 70.001. It is our position that the Revisions inordinately burden our Client’s existing use of the Property and/or a vested right to a specific use of the Property under Section 70.001(2) of the Act.

There are additional objections alleged by the property owner in addition to the Bert J. Harris Private Property Rights Protection Act (“Act”) claim. Other objections include impermissible spot zoning; violation of Equal Protection, as well as the length of the moratorium (which actually was 'accidentally' dropped for a period of time, which many other property owners used as an opportunity to rush development plans into the Village Planning office, before that window of opportunity closed.Counsel for ended their correspondence stating that "We hope the Village will take our concerns seriously and modify the Revision accordingly. In this regards we are ready to meet with the Village at any time. If our Client’s concerns are not resolved we will have no alternative but to pursue our legal remedies. PLEASE GOVERN YOURSELF ACCORDINGLY."

Stay tuned and we shall see what develops.

EDITOR'S NOTE: Is this the new normal for Palmetto Bay? Is there sufficient monies put aside to cover the expected litigation expenses for the remainder of this budget year? How large will the village litigation budget be for the upcoming 2020-21 budget year. Is this the REAL reason why the Cunningham Administration is seeking to raise taxes?

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.

I have posted this link (CLICK HERE) to the complete 6 page November 30, 2018, land use letter prepared by the Village of Palmetto Bay for attorneys for Luxcom.  

This letter begins:

Thank you for your interest in working with the Village of Palmetto Bay to determine development possibilities for the land that is described by Folio 33-5024-000-0020 that was previously the site of the Florida Power & Light Cutler Plant.

This is a six page letter that requires deliberate reading. No one phrase or paragraph is determinative on its own.

This post is part of an ongoing series of posts related to LUXCOM's Bert J Harris claim, see PRIOR RELEVANT POSTS (the 'toolbox'):

January 13, 2020, blog post: involving Breaking News – 2:29 PM, Monday, January 13, 2020 - LUXCOM voluntarily dismisses the DOAH administrative action; gives notice of BERT J HARRIS claim potentially seeking over $21 million. Details including link to relevant documents.  As indicated, there are links provided to relevant documents that will allow those interested to do a deep dive into this matter.

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.

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

Be thankful that Bert J Harris claims don’t arise every day. But this also means that the law is one that is still developing, so there is some uncertainty, so less predictability, as to how these serious claims for (alleged) deprivation of property rights may play out. 

I offer up some perspective to answer questions I have been asked on this matter. I am publishing this response here for public viewing as well as to assist our first time Palmetto Bay “Interim” Village Manager who has no experience in these types of matters as well as Palmetto Bay’s recently hired in-house Village Attorney (I am unaware as to his level of expertise on this specific litigation). I am trying to be helpful. The main point is Palmetto Bay needs to manage this litigation correctly as this could be the first of a few Bert J Harris claims, unfortunately, rather than a unique claim. Palmetto Bay must avoid setting bad law precedent for future litigation.

This article is in follow up to the Monday, January 13, 2020, blog post: involving Breaking News – 2:29 PM, Monday, January 13, 2020 - LUXCOM voluntarily dismisses the DOAH administrative action; gives notice of BERT J HARRIS claim potentially seeking over $21 million. Details including link to relevant documents.  As indicated, there are links provided to relevant documents that will allow those interested to do a deep dive into this matter.

Before a lawsuit is filed for a Harris Act claim, certain prerequisites are required under the statute. The Bert J Harris claim must be submitted not less than 150 days prior to filing a lawsuit under the act (Completed by LUXCOM on 1/13/2020). This claim must include a bona fide valid appraisal in support of the claim. (Completed by LUXCOM on 1/13/2020). Both the claim letter and appraisal were delivered to Palmetto Bay.

Palmetto Bay is now on the clock, and is required to either make a written settlement offer or state that Palmetto Bay will take no action within 150 days. (Deadline date:  Thursday, June 11, 2020)

If no settlement is reached during the 150-day notice period, Palmetto Bay must then issue a written statement of allowable uses identifying the allowable uses.

LUXCOM has to follow this procedure, or Palmetto Bay will be entitled to a dismissal of the Bert J. Harris Act claim.

Remedies – the $21,760,000.00 question.

Cash or rezoning – much is a matter of timing and how Palmetto Bay responds. 

LUXCOM appears to be alleging $21,760,000.00 in damages under Bert J Harris. The important allegation is contained in the Appraisal (Page two of appraisal, overall page eight of 63) that the Bert J Harris damages are projected at $21,760,000.00. The appraisers arrive at that number by setting their appraised value for the property as of July 29, 2019 at $34,000,000.00 based upon the value as an institutional use. The same appraisers then set a value for this same property predicated upon the re-zoning for the Estate Density Residential as of July 30, 2019: $12,240,000.00.  This results in the opinion of the appraisers for the "Bert J. Harris" claim as of July 30, 2019, or: $21,760,000.00.

Obviously Palmetto Bay will seek its own appraisal. However, it will be bound by the appraiser’s report.  Perhaps the appraiser will opine that there is no difference in value between the value of institutional use for example on July 29, 2019, as when the property was rezoned (as of July 30, 2019). Obviously, any different in value by Palmetto Bay appraisers (if requested) will set a minimum (floor) for potential damages, just as LUXCOM is bound by a maximum claim (ceiling or high water mark) of $21,760,000.00.

Another aspect of the act is encouragement for the parties to resolve claims by using alternative remedies (sounds a lot like the 12/12/2019 dispute resolution event, that did not go well for Palmetto Bay – see: January 7, 2020, South Dade Updates Guest Blog- view of the 12/12/2019Palmetto 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 here, not stop signs)

Palmetto Bay, if it acts timely, can avoid monetary damages, but, [and again, during a limited period (unless extended)] Palmetto Bay must make a written settlement offer that can include adjustment of land development; increase in density, intensity, or use; transfer of developmental rights (TDRs); land swaps or exchanges; mitigation, including payments in lieu of onsite mitigation; location on the least sensitive portion of the property; conditioning the amount of development or use permitted; etc. This takes a willingness to actually take a stand and make an offer. Obviously none of this would occur if Palmetto Bay officials opine that the Village (and its taxpayers) are at no risk from a Bert J Harris Act claim.

Big Issues with remedies

Once a lawsuit is filed, the court is limited to remedy monetary damages only. This may pit Palmetto Bay's appraisal (if one is obtained) v. LUXCOM’s appraisal of  $21,760,000.00.

Special circumstances may allow for the parties to revisit the monetary and work out a zoning option, but both sides need to be willing and sufficiently savvy to do so.

The “Toolbox” (resource materials):

The actual ACT online (CLICK HERE or title line below):

RELIEF FROM BURDENS ON REAL PROPERTY RIGHTS

CHAPTER 70

RELIEF FROM BURDENS ON REAL PROPERTY RIGHTS

70.001   Private property rights protection.

70.002  Property Owner Bill of Rights.

70.20 Balancing of interests.

70.45 Governmental exactions.

70.51  Land use and environmental dispute resolution.

70.80 Construction of ss. 70.001, 70.45, and 70.51.

70.001 Private property rights protection.—
(1) This act may be cited as the “Bert J. Harris, Jr., Private Property Rights Protection Act.” The Legislature recognizes that some laws, regulations, and ordinances of the state and political entities in the state, as applied, may inordinately burden, restrict, or limit private property rights without amounting to a taking under the State Constitution or the United States Constitution. The Legislature determines that there is an important state interest in protecting the interests of private property owners from such inordinate burdens. Therefore, it is the intent of the Legislature that, as a separate and distinct cause of action from the law of takings, the Legislature herein provides for relief, or payment of compensation, when a new law, rule, regulation, or ordinance of the state or a political entity in the state, as applied, unfairly affects real property.

BLOG EDITOR'S DISCLAIMER: I will update with more information in additional future posts. This information is put out to provide some idea of the alleged basis for the LUXCOM claim under BERT J HARRIS ACT. How the claim actually proceeds, if at all is dependent in large part upon how the claim is pursued by LUXCOM as well as defended by the Village of Palmetto Bay.

QUICK BITE – Observation of the issues generated at the “Zoning Hearing / LPA meetings” held Monday, January 13, 2020 – I see issues and a glaring need for a reboot to survive court action or rejection by the State.

Monday night concerns - Should I watch college football or Palmetto Bay hearings? Tough choice. I tuned in to the Palmetto Bay Land Use/Zoning Hearings held during the evening of Monday, January 13, 2020, for a few minutes. However, I do admit that I was a bit distracted in my activities by the College Football National Championship game (as were most of us sports loving South Floridians).

Please help me. Did I see what I thought I saw? Specifically did I see a mayor and Village Council voting on an ordinance that affects an entire area, but apparently was noticed (or more correctly – mis-noticed) only as a specific zoning / LPA matter affecting specifically listed properties and not correctly listed as a reduction in vested property rights?

It appeared to get worse as I watched. It  seemed that Mayor Cunningham and the remainder of the Village Council did not know what they were voting on (well, 3 of the remaining 4 – as Council Member David Singer did recognize and raise the issue of notice and legality, that the proceeding - not the decision - was improper) – the density of this ordinance (again, that they had been ‘hard at work on for over a year’) was greater than the prior DUV. Again, this was after more than a year of ‘workshops’ and other meetings that involved ‘preliminary votes.’ Council Member Singer did tell me later on that he is in favor of the 2,500 cap, but that it must be put in place properly, as required by law.

Panic appeared to ensue and a reactionary and arbitrary cap of 2,500 units appeared to be placed on this downtown area. This, seemingly, without notice to all properties located within this downtown area or for the general population of Palmetto Bay.

So before we get all excited and applaud this arbitrary 2,500 unit cap for the downtown (which may or not be a good thing, if properly put in place), let’s consider whether this action is:

1. Likely to survive court challenge as there appears to be improper notice – both to the public as well as the affected landowners.

2. Arbitrary, not based upon any evidence – yet another “Palmer” litigation situation.

3. Legal – this appears to downzone properties without giving them notice (government does have discretion in areas to make land use decisions adverse to a property owner, but you have to at least give notice as to the action).

4. Liable to create yet another Bert J Harris Act issue (more on this in other areas, but think “LUXCOM”), and, finally (for now – there are other issue that I could, but will not address at this time),

5. Does this action create a conflict between the Palmetto Bay Zoning Code and Comprehensive Development Master Plan (CDMP)? – (but there are workarounds).

My prediction? At best, I see a re-do or re-boot in the future, or, at worst case, yet more Bert J Harris Claims. And, this is if this hastily and arbitrarily revised ordinance can even get the required review by the State - It may not get transmitted to the State for review.

Moral should be (if there is one for this group): Anything worth doing, is worth doing properly. As much as I wanted to watch and enjoy college football, it is clear that we all need to keep a watchful eye on this Mayor and Village Council.  Has this current Mayor and Village Council forgotten the hard lesson of arbitrarily picking numbers out of the air (for populist approval) from the Palmer litigation fiasco?

Quote by Hunter S Thompson: “Anything worth doing, is worth doing right.”

US Supreme Court provides a Federal right to contest local government action affecting property rights. Knick v. Township of Scott, Pennsylvania - From the SUPREME COURT OF THE UNITED STATES BLOG (SCOTUSblog)

Most failed to notice a Supreme Court decision published Friday, June 21, 2019: Knick v. Township of Scott, 588 U.S. _____ (2019).* The US Supreme Court expressly overruled the legal precedent of Williamson Planning Comm'n v. Hamilton Bank, 473 U.S. 172 (1985), extending Federal Civil Rights, 42 U.S.C. Sec. 1983, to land use actions by local governments. 

WHY THIS IS IMPORTANT: Federal court litigation and rights under 42 U.S.C. Sec. 1983 may provide much greater property rights to aggrieved land owners than the State remedies. My thanks to Palmetto Bay Council Member David Singer who does his research and stays abreast of developing issues and the law. Preparation is invaluable.

RELATED PRIOR POST: I invite readers to review my prior post of March 31, 2019, Update on DUV revisions. Reviewing attorneys' opinions and considering in light of transparency in the Village. Do these detailed legal opinions require updates in light of the Knick v. Township of Scott, US Supreme Court decision?

The "Ku Klux Klan Act": Section 1983 was enacted on April 20, 1871 as part of the Civil Rights Act of 1871. It is also known as the "Ku Klux Klan Act" as one of its primary purposes was to provide a civil remedy in Federal Court against the abuses that were being committed in the southern states, especially by the Ku Klux Klan. This action provides a Federal remedy to provide protection, the only remedy in some local areas, where laws may have existed to protect citizens in theory, but protection in practice was non-existent to some because those persons charged with the enforcement of the laws were unable or unwilling to do so. Section 1983 was intended to provide a private remedy for such violations of Federal law.

In land-use cases, the federal statute 42 U.S.C. § 1983 protects property owners against municipal actions that violate a property owner's constitutional rights, including actions that violate a property owner's rights to due process, equal protection of laws and just compensation for the taking of property under the Fifth and Fourteenth Amendments to the United States Constitution.

Impact to bringing claims in Federal Court: Prior to last Friday (June 21, 2019), aggrieved property owners were expected to litigate state claims, such as inverse compensation claims, before they could take their federal property rights claims to federal courts.  The US Supreme Court rendered a 5-4 decision on Friday, June 21, 2019, that overturned this existing precedent and it will have major impact on property right litigation filed by property owners against local governments for ordinances that impact their property.  

It appears that under the Knick v. Township of Scott, 588 U.S. _____ (2019) decision, government regulation can be considered a "taking" within the meaning of the Fifth Amendment overruling a prior decision, the president set by a prior US Supreme Court in Williamson Planning Comm'n v. Hamilton Bank, 473 U.S. 172 (1985)

Please note that the immediate information posted below is taken verbatim from the SUPREME COURT OF THE UNITED STATES BLOG (SCOTUSblog):

Knick v. Township of Scott, Pennsylvania

Docket No.	Op. Below	Argument	Opinion	Vote	Author	Term
17-647	3d Cir.	Jan 16, 2019 Tr.Aud.	Jun 21, 2019	5-4	Roberts	OT 2018

Holding: A government violates the takings clause when it takes property without compensation, and a property owner may bring a Fifth Amendment claim under 42 U. S. C. §1983 at that time; the state-litigation requirement of Williamson County Regional Planning Comm’n v. Hamilton Bank of Johnson City, is overruled.

Judgment: Vacated and remanded, 5-4, in an opinion by Chief Justice Roberts on June 21, 2019. Justice Thomas filed a concurring opinion. Justice Kagan filed a dissenting opinion, in which Justices Ginsburg, Breyer, and Sotomayor joined.

SCOTUSblog Coverage
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OTHER NEWS SOURCES/INTERPRETING THE KNICK DECISION

National Public Radio (NPR) and its report of this decision and potential impact: NPR - LAW - Supreme Court Overturns Precedent In Property Rights Case — A Sign Of Things To Come?, by Nina Totenberg, June 22, 2019:

As reported:

A sharply divided U.S. Supreme Court ruled Friday that property owners can go directly to federal court with claims that state and local regulations effectively deprive landowners of the use of their property.

The 5-4 decision overturned decades of precedent that barred property owners from going to federal court until their claims had been denied in state court.

Federal courts are often viewed as friendlier than state courts for such property claims. The decision, with all five of the court's conservatives in the majority, may have particular effects in cities and coastal areas that have strict regulations for development.

Property owners and developers often have complained that zoning rules and other state and local regulations effectively take their property for public benefit, and that the Constitution requires that they be paid just compensation.

          CLICK HERE to read the full NPR article

More to come on what, if any, impact this will have upon Palmetto Bay & Cutler Bay pending land use issues.

GOVERNMENT TAKING OF A PROPERTY RIGHT:
What is a taking? That can be an issue decided on a case by case basis, but let’s look at the simple facts of this case, now known as Knick v. Township of Scott, 588 U.S. _____ (2019). The property owner, Rose Knick, was contesting a local ordinance that forced her to allow public access to her private farmland due to the fact that her 90 acre outlying property has a family graveyard – a family, not a commercial public graveyard.

OFFENDING ORDINANCE:
The Ordinance itself is simple. The Township of Scott, Pennsylvania, passed an ordinance requiring that 

“[a]ll cemeteries . . . be kept open and accessible to the general public during daylight hours.” 

The Township of Scott, Pennsylvania, passed an ordinance requiring that “[a]ll cemeteries . . . be kept open and accessible to the general public during daylight hours.” Rose Mary Knick, the property owner of a 90-acre rural property with a small family graveyard, was notified that she was violating the ordinance. Ms. Knick sought declaratory and injunctive relief in state court on the ground that the ordinance effected a taking of her property, but she did not bring an inverse condemnation action under state law seeking compensation. 

ORDINANCE WITHDRAWN – NO PENDING ENFORCEMENT – NOT MOOT:
What I find interesting is the fact that the Township responded by withdrawing the violation notice and staying enforcement of the ordinance. Without an ongoing enforcement action, the lower court held that Ms. Knick could not demonstrate the irreparable harm necessary for equitable relief, so it declined to rule on her request. 

FEDERAL COURT ACTION FOR VIOLATION OF CIVIL RIGHTS – THE “1983” ACTION:
Ms. Knick also filed an action in Federal District Court under 42 U. S. C. §1983, alleging that the ordinance violated the Takings Clause of the Fifth Amendment. 

US SUPREME COURT DECISION:
Decided on Friday, June 21, 2019, reported as Knick v. Township of Scott, 588 U.S. _____ (2019) No. 17–647. Argued October 3, 2018—Reargued January 16, 2019 CLICK HERE to view the official published opinion.
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* As listed in the Opinion Syllabus; ROBERTS, C. J., delivered the opinion of the Court, in which THOMAS, ALITO, GORSUCH, and KAVANAUGH, JJ., joined. THOMAS, J., filed a concurring opinion. KAGAN, J., filed a dissenting opinion, in which GINSBURG, BREYER, and SOTOMAYOR, JJ., joined. 

Update on DUV revisions. Reviewing attorneys' opinions and considering in light of transparency in the Village

I originally released the DUV opinions on March 15, 2019. Please note, fellow residents, that we, the tax payers, paid for these opinions. Not a single member of the village council reached into their own pockets to pay for all the extra legal opinions. These documents belong to the residents, not any single member of the Village Council, not to the Manager and not to any special interest group.

 As stated, I originally released these opinions on March 15. See: DUV update - materials available to Attorneys’ DUV analysis (CLICK HERE or the headline to view. You can download all three opinions).

I reviewed the 3 paid attorney opinions and I may release my opinion in advance of the hearings.

My first observation is that I cannot believe that I am the only on to release them; that they have not officially been released by the Village for study by the public. I guess this administration works on a “need to know” basis and deems that at this point the public needs not know.  So it appears that it is OK for the public to pay for these opinions, but not to view the opinions in advance of the DUV hearings.

I am waiting to hear something, anything, from a member of the village council. It appears that the current Mayor and Council Members are playing it close to the vest, not commenting (A/K/A "committing") to anything in public, seemingly only willing to discuss in closed groups of their own specific supporters (or maybe they have yet to begin to focus on the issue).

It appears to me that all options are on the table. I will be interested to see if there are any changes to the original opinions as it gets closer to decisions, or if any one or all three of the attorneys will be invited to participate at the DUV hearings in order to actually apply an actual opinion to a firm set of facts rather than answering a broad brush survey of the general law of municipal zoning.

Note that the analysis centers based upon facts as presented. I have posted links for everyone to view and download in order for interested persons to be able to read and interpret the opinions on their own. These opinions may eventually be posted to the Village website, but were not as of the date I released, Friday, March 15, 2019, nor even weeks later as I post this update.  The time does continue to run on the DUV proposals.

DUV update - materials available to Attorneys’ DUV analysis

The attorney's opinions to the Village Council have been received regarding the DUV.  Note that the analysis centers based upon facts as presented. I have posted links for everyone to view and download in order for interested persons to be able to read and interpret the opinions on their own. These opinions may eventually be posted to the Village website, but have not as of noon today, Friday, March 15, 2019.

(CLICK HERE) for Memorandum of LEHTINEN SCHULTZ, PLLC, Village Attorneys, dated March 6, 2019, consisting of 44 pages

(CLICK HERE) for Memorandum of John R. Herin, Jr., Esq., Fox Rothschild LLP, dated March 4, 2019, consisting of 9 pages

(CLICK HERE) for Memorandum of John Quick, Esq., Weiss Serota Helfman Cole & Bierman, dated March 6, 2019, consisting of 34 pages

These attorney opinions will be important tools for the revisions to the DUV Code.

IMPORTANT NOTE (DISCLAIMER): As stated in one footnote (a legal disclaimer): (The attorneys) cannot and do not make any representations or warranties concerning the likelihood of any particular property owner initiating and prevailing on a Bert Harris Act claim against the Village, or the outcome of such claim. We do believe, however, the analysis contained in this Memorandum represents the current state of the law in Florida on the matters set forth herein.

The devil is always in the details of any Palmetto Bay legislative effort. Agenda item 9H for consideration this Monday, May 7– a moratorium may soon be imposed for the residential areas. This may have a profound impact on both your property rights and tax dollars. A detailed must read.

You always have to watch the village agenda to find things that may affect you.  There is one significant item of profound impact on Palmetto Bay in property rights and your tax dollars, short term, not advertised in the newspaper, but you can find on the agenda current posted online, agenda item 9H.  CLICK HERE to check out the upcoming Agenda items for the Monday, May 7, 2012, regular village council meeting.  The council is about to embark on a major rewrite on the Palmetto bay Code, so my first comment is that this takes time to do this properly.  The current Palmetto Bay code was not finally enacted until 2009 – and was voted on and approved by the current mayor, Vice Mayor and one current sitting member of the village Council.  This was a multi-year effort.  Codes are not something that can and most certainly should not be put together in a rushed manner, especially where there is the potential for severe financial impact as well as profound difficulties to area residents.   What is the emergency and what is the need to impose a moratorium?  Any non-residential use in a resident area requires a zoning process and a public hearing where concerns can be addressed? 

It is unfortunate.  I am not aware of any pending non-residential projects going on within the Village, but this moratorium will have a profound impact upon the residential property owners of Palmetto Bay, its effect will be much longer than the just the stated moratorium period and here is why:  No one is going to even start talking with their architects and drawing plans until after the code changes are in place.  It takes months for drawings to be readied for submission to the Building Department.  That means that people will be holding off and starting from scratch when the moratorium if finally lifted. 

The agenda contains both good items, such as the Village Council recognizing the members of the building and permitting committee.  This is good news as it shows some movement by this council to implement some of the well-thought changes to the permitting procedure, including the permit fee schedule, but in the Kafkaesque world of this Palmetto Bay council, there seems to always be sobering bad news in the details to follow the good.  The bad news is that for the next several months you may not be able to use the services of the permitting department at all. 

What? Yes, anyone who may want or need to add on to their house, or buy a home, subject to making modifications, will not be able to do so for the foreseeable future.    That could hurt home sales as well as making homes available for the arrival of that new child or an elderly parent moving in. 

Another issue – will any seller or buyers be able to open a permit to close out an expired open permit required to sell a house?  This could impact sellers and buyers as well as the local real estate agents.  That needs to be considered and an appropriate exemption or allowance needs to be put in place.

This proposed halt to residential construction is for time to create, legislate and implement a yet to be defined Neighborhood Preservation and Compatibility modification to Palmetto Bay’s existing code (Which was, by the way, completed in 2009, and approved by three of the five current members of the Palmetto Bay council).  There are no stated details for this Neighborhood Preservation and Compatibility available to the public (Click the link to view the documents, Agenda item 9H, beginning page 125 and running through to page 130), yet this council appears ready to lose up to $57,000.00 per month in revenues caused by the enactment of the Zoning In Progress (ZIP) resolution and moratorium. This is most troubling as The Permitting department is self-sustaining, meaning that permit and other fees cover the costs, not general revenue tax dollars, but the expected loss of revenues means that ongoing permit fees will not be generated to cover the expenses that will continue for the department.  Any overall shortfall in revenue against the expenses will require that the taxpayers, meaning you and me, will have to cover those expenses through our general revenue tax dollars. 

Please note that as currently proposed, the ZIP would not apply to the commercial or mixed use districts (with the exception of the Live Work Residential area of the FT&I District) – only the residential areas are being placed on hold for this undisclosed legislative change.

The proposed resolution seeks to implement a moratorium projected to last up to 4 months in order to implement the neighborhood preservation and compatibility modifications that are currently undisclosed.  The moratorium could last less time, possibly as little as 60 days if the code is rewritten with blazing speed or it could last up to a year (without the moratorium itself being considered a “taking” under the Bert J Harris).

Should this resolution pass in its present form, there will be a period of time where no building permits, certificates of use, development orders will be issued except for emergency repairs.  If and once the moratorium passes no building permits, certificates of use, development orders will be issued if the issuance would result in the nonconforming or unlawful use of the subject property should the proposed changes be enacted by the Village Council. 

The Building Official will be able to issue permits for fences, interior repairs or remodeling, general repairs or similar matters where he determines that such permits will not affect outcome of the planned study.