Editor Miller raises some serious issues relating to Palmetto Bay’s fiscal accountability, litigation and transparency. The $750,000.00 question.

Currently available on Community Newspapers online: Court rules against the Village of Palmetto Bay in Luxcom case, by Michael Miller, Editor.  $750,000.00 Please, I want to be kept in the loop! My question: Have Palmetto Bay officials spent  more than $750,000 in the different legal matters with Luxcom through October 2021? Obviously that wouldn’t cover all the critical filings leading up to the March 31, 2022, hearing or the Answer and Affirmative Defenses filed late last month. What’s the actual legal bill to date? What is the total budget set aside for this litigation? There are more costs that mere legal. What about overall staff and consultant (administrative) costs that should be associated to this Luxcom matter?

The Palmetto Bay public has a right to know. And the Palmetto Bay elected and staff officials have the duty of candor to the public.  Editor Miller's report raises some alarms as this is not the story that I have been kept in the loop about. This matter has clearly turned into a grudge no holds barred match.  Editor Miller reported on the recent loss that the Palmetto Bay community suffered in court on March 31, 2022.  Background, for those not in the loop, Editor Miller explains that Yacht Club by Luxcom, LLC “… has sued the Village of Palmetto Bay to recover more than $20,000,000.00 in compensation for losses caused by the Village’s efforts to prevent Luxcom from developing its property.

I, myself, have attempted to keep readers in the loop through some of my blog posts (listed at bottom).  Editor Miller reached out for comments from Luxcom, a source we, the people, have not heard from, speaking to a Mr. Barbara, who is the developer of Luxcom.  As Editor Miller explains it: 

When asked about the litigation Mr. Barbara responded – “We are pleased that the Court saw through the Village’s tactics and we look forward to moving vigorously and swiftly with discovery and the preparation for trial in what will be an expensive case with tens of millions of dollars at risk to the Village and its tax payers. As a result of the Court’s ruling, the lawsuit will now proceed forward on its merits, and the Village will finally be held accountable for its conduct and the harm it caused to Luxcom’s property.” 

Barbara added – “additionally, documents obtained through their Public Records Request show that the Village has already spent more than $750,000 in the different legal matters with Luxcom through October 2021, and this case has just begun.”

This is huge and I do believe the taxpaying public is due a full and complete accounting as to the following:

• What has been spent to date on this Luxcom litigation?
• Legal costs versus all staff time, administrative costs.
• What is the projected budget set aside for this Luxcom litigation?
• What are the goals of this litigation?
• What is Luxcom entitled to under the law? 
• What is he village attempting to stop Luxcom from building?
• Will this litigation resolve the issue or is it merely one more step to additional litigation

Transparency and accountability is important as Editor Miller specifically stated that:

“When Mayor Karyn Cunningham was asked to comment about the most recent court ruling, she said that because it was an ongoing case, she could not comment and directed any questions to the Village Attorney.” 

No, that is deflection, avoidance. The people have the right to know. Legal strategy is one thing, but providing a realistic assessment of the goals, costs to date as well as reasonably expected future costs of this litigation is the public’s right to know.

PRIOR RELATED POSTS - LUXCOM LITIGATION:

April 30, 2022, LUXCOM Litigation update. Palmetto Bay files the Answer and Defenses. 14 pages - filed April 28, 2022

April 21, 2022, LUXCOM Litigation update - Transcript of proceedings from March 31, 2022, now available to the public on official court docket

April 18, 2022, Luxcom litigation update - Palmetto Bay's Motion to Dismissal was denied. Case moves forward.

LUXCOM Litigation update. Palmetto Bay files the Answer and Defenses. 14 pages - filed April 28, 2022

Palmetto Bay filed the Answer and Defenses on April 28, 2022. The entire 14 page document can be downloaded for your own review.

Short procedural history of this case to date: This present LUXCOM action was filed November 5, 2020. Palmetto Bay attempted to have this complaint dismissed as its first option, filing the first motion to dismiss on December 20, 2020. The result? Apparently the parties agreed to the Plaintiff, LUXCOM, filing an Amended complaint on May 12, 2021, and again on October 14, 2021. A renewed motion to dismiss was filed on November 9, 2021.  The issue was finally ready for hearing on the motion to dismiss on March 31, 2022. The Judge, after review of the pleadings filed and hearing the arguments of the attorneys, denied Palmetto Bay's motion to dismiss by order rendered April 18, 2022. The Order refers back to the separately filed transcript for the specifics relating to reasons for denial. 

Palmetto Bay's Answer and Defenses is the 52nd substantive document filed in this case that now enters its 18th month of litigation. Review a copy of the official court public online docket current as of April 28, 2022. The answer is the defendant’s respond to the complaint and to put forth any defenses if he or she so desires (those not raised are usually considered waived). The answer may also contain defenses (affirmative defenses) that the defendant offers in response. The defendant may offer affirmative defenses, as Palmetto Bay attorneys listed in their answer. The Defendant (Palmetto Bay) has the burden of proving these defenses. 

This case now moves on to what can be expected as a very detailed discovery phase. Documents will be exchanged. Depositions will be taken where various staff and village council members will be called upon to provide testimony under oath for use in either the summary motions or trial, if this case goes that far.  The case does not necessarily wait for trial to be resolved. Either side may be entitled to a summary judgement in its favor based upon how the case develops through discovery. I will post on those options should they become relevant in order to keep readers in the loop. 

BACKGROUND – PRIOR RELATED POSTS: 

April 21, 2022, LUXCOM Litigation update - Transcript of proceedings from March 31, 2022, now available to the public on official court docket

April 18, 2022, Luxcom litigation update - Palmetto Bay's Motion to Dismissal was denied. Case moves forward.

LUXCOM Litigation update - Transcript of proceedings from March 31, 2022, now available to the public on official court docket

LUXCOM filed the transcript of the hearing on Defendant’s, PALMETTO BAY, Motion to Dismiss Second Amended Complaint held on March 31, 2022.  I need to review the transcript.  (CLICK HERE to download and view this 53 page document)

This is the transcript referred to in the Order Denying the Motion to Dismiss:

"1. The Village’s Motion is denied for the reasons stated in open Court as reflected in the transcript from the hearing a copy of which has been separately filed by Luxcom."

The filing actually took place on April 18, 2022 at 1:46 PM, but was not visible to the public until Thursday afternoon, 4/21/2022.

BACKGOUND INFORMATION: See prior related post of April 18, 2022, Luxcom litigation update - Palmetto Bay's Motion to Dismissal was denied. Case moves forward.

I will continue to keep readers in the loop. 

Luxcom litigation update - Palmetto Bay's Motion to Dismissal was denied. Case moves forward.

The Judge rendered her order denying Palmetto Bay's Motion to Dismiss in the case of Yacht Club by Luxcom, LLC v. Village of Palmetto Bay, 2020-023918-CA-01. The hearing was held on March 31, 2022. 

This was a denial of a motion to dismiss.  This is not an adjudication of the entire case; specifically not an award of any damages or other relief to the Plaintiff, Yacht Club by Luxcom, LLC. This denial does mean that this case will be heavily litigated and will require significant work to defend. 

The order is simple - it merely provides that:

1. The Village’s Motion is denied for the reasons stated in open Court as reflected in the transcript from the hearing a copy of which has been separately filed by Luxcom.

2. In accordance with Rule 1.140(a)(3), Fla.R.Civ.P., the Village shall serve its answer within 10 days from the date of this Order.

CLICK HERE to view this simple 2 page order.

I am looking for the transcript from the hearing a copy of which is stated to have been separately filed by Luxcom. This item is not yet visible on the public docket. I will update this post when that item becomes available. 

Next step - attorneys for the Village have 10 days from April 18, 2022, to prepare and file the answer. This will be a comprehensive document; it will not be a short form.

Other significant litigation pending (there are others cases filed that are not currently significant in my opinion):

17777 OLD CUTLER ROAD, LLC, VS VILLAGE OF PALMETTO BAY
Local case number: 2022-006141-CA-01 
Filed April 1, 2022

17777 OLD CUTLER ROAD, LLC VS VILLAGE OF PALMETTO BAY, FLORIDA ET AL
Local case number: 2022-000012-AP-01
Filed April 1, 2022

VILLAGE OF PALMETTO BAY ET AL VS MIAMI-DADE COUNTY, FLORIDA
Local case number: 2022-003627-CA-01
Filed February 25, 2022

AMADO RODRIGUEZ ET AL VS VILLAGE OF PALMETTO BAY
Local case number: 2022-000305-CA-01
Filed January 6, 2022

YACHT CLUB BY LUXCOM, LLC VS VILLAGE OF PALMETTO BAY, FLORIDA (this case)
Local case number: 2020-023918-CA-01
Filed November 5, 2022

VILLAGE OF PALMETTO BAY, FLORIDA VS MIAMI-DADE COUNTY
Local case number: 2019-031036-CA-01
Filed October 18, 2019

It appears there will be a round III to LUXCOM I. Round III will be held before the Third District Court of Appeal. Official updates? You should feel honored if you were among the lucky to have been kept in the loop. The silence is deafening.

The LUXCOM litigation is far from over, so our elected officials should put out their victory cigars and stop the back patting, or at least put in on hold for now. In something that has not been put out in any Village Update, Palmetto Bay is back before the Third District Court of Appeal in the ongoing legal battles with LUXCOM.  A Petition for Certiorari was filed on December 30, 2020 (what a way to end an already bad year).  LUXCOM continues to contest, to quash, (or reverse), Ordinance No. 2019-18 of the Village of Palmetto Bay which amended the Village’s official zoning map by revising the zoning designation of a parcel of land owned by Luxcom to one unit an acre (as I have stated, this action by the Village is fully defensible). I would expect that Palmetto Bay should prevail on this latest action before the Third District Court of Appeal. 

This action is styled  YACHT CLUB BY LUXCOM, LLC, vs. VILLAGE OF PALMETTO BAY COUNCIL, et al., Case Number: 3D20-1950, (Lower Tribunal Case(s):19-265-AP, Ordinance No.: 2019-18).

Judges of the Third District Court of Appeal rendered an order on January 6, 2021, requiring Palmetto Bay, the Respondents, “… to file a response within twenty-one (21) days from the date of this Order to the Petition for Issuance of Writ of Certiorari….” Wednesday, January 27, 2021, is the present date for the filing (unless extended by the Court).

BACKGROUND can be found in the PRIOR RELATED POST of December 1, 2020, Palmetto Bay wins round II – Court sides with Palmetto Bay. Luxcom's Petition for Writ of Certiorari is DENIED. Opinion released Tuesday, 12/1/2020

TRANSPARENCY ALERT: Here we go again. Does anyone else here feel like they are not being kept in the loop as to this extensive ongoing litigation?  Those who want to know need to continue to track public court dockets for information. There once was a time when Palmetto Bay maintained a page on the Village website where updates were posted relating to litigation, but those were different times, and different directions on transparency under two different prior Mayors, both Stanczyk and Flinn. This lack of information is quite sad. Obviously the most recent election failed to led to increasing transparency or reporting to Village residents. 

IMPACT: The Village of Palmetto Bay is now required to file our response on Wednesday, January 27, 2021, unless this deadline is extended by the court. Attorneys for Palmetto Bay will be arguing in support of the decision of the Appellate Division of the 11th Judicial Circuit.  LUXCOM then has seven (7) days from date the Village files its Response, again, unless this deadline is extended by the court.

The Judges assigned to this Petition may affirm or reverse the action of the lower court decision. This is another wait and see period. 

It is starting to smell like the Palmer Litigation. CLICK HERE to view some prior related posts relating to the past Palmetto Litigation.

RESEARCH NOTES: Litigation history LUXCOM v. Village of Palmetto Bay:

Circuit Court, including Appellate Division:

YACHT CLUB BY LUXCOM, LLC VS VILLAGE OF PALMETTO BAY, FLORIDA
Case Number 2020-023918-CA-01 Filed 11/05/2020 OPEN

YACHT CLUB BY LUXCOM, LLC VS VILLAGE OF PALMETTO BAY COUNCIL ET AL
Case Number 2019-000265-AP-01 Filed 08/29/2019 CLOSED 

YACHT CLUB BY LUXCOM, LLC VS VILLAGE OF PALMETTO BAY ET AL
Case Number 2019-025745-CA-01 Filed 08/29/2019         CLOSED

YACHT CLUB BY LUXCOM, LLC VS VILLAGE OF PALMETTO BAY, FLORIDA
Case Number 2019-011663-CA-01 Filed 04/17/2019         OPEN

Third District Court of Appeals

YACHT CLUB BY LUXCOM, LLC vs. VILLAGE OF PALMETTO BAY, FLORIDA,
Third District case number: 3D19-1495                                                        CLOSED

YACHT CLUB BY LUXCOM, LLC, vs. VILLAGE OF PALMETTO BAY COUNCIL, et al., 
Third District case number: 3D20-1950                                                        OPEN

Litigation update. Palmetto Bay response to LUXCOM lawsuit is due today, Wednesday, 12/30/2020

The Palmetto Bay response is due to be filed today, Wednesday, 12/30/2020. I expect a voluminous motion to dismiss with a detailed memorandum of law. The document(s) will be available immediately upon filing to the attorneys and their clients, but unless the current mayor and/or council choose to release it, the public will have to wait for the document(s) to clear redaction before they are viewable on the Miami-Dade Court public docket. The non-connected members of the public may have to wait as long as 5 business days to see the filing.

Would you like some background on this lawsuit? CLICK HERE to view PRIOR RELATED POST of November 10, 2020, 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. 

Palmetto Bay wins round II – Court sides with Palmetto Bay. Luxcom's Petition for Writ of Certiorari is DENIED. Opinion released Tuesday, 12/1/2020

CLICK HERE to read the fully favorable opinion, released today, Tuesday, December 1, 2020.

This proceeding was an action, in this case a Petition for Writ of Certiorari, a process where Luxcom sought to quash, or reverse, Ordinance No. 2019-18 of the Village of Palmetto Bay which amended the Village’s official zoning map by revising the zoning designation of a parcel of land owned by Luxcom to one unit an acre (as I have stated, this action by the Village is fully defensible).

RESULT: Luxcom's Petition for Writ of Certiorari is DENIED. I see no victory for Luxcom should they entertain any thoughts of moving upward to the Third District Court of Appeal.

Dexter does it again. Palmetto Bay's "retired" attorney once again does some outstanding work for the Village of Palmetto Bay. Why again, is he no longer the official day to day village attorney? Regardless, the law firm of our 'former' Village attorney continues to fight hard in protecting Palmetto Bay residents. I am pleased that the Lehtinen Schultz, PLLC, team of Dexter Lehtinen, Claudio Riedi, Esq. and Amanda Quirke Hand, Esq. continue on in protecting Palmetto Bay’s financial interests.

 Let’s hope that Dexter Lehtinen and his Lehtinen Schultz, PLLC, team are the assigned counsel for the defense of Luxcom’s Bert J Harris act lawsuit.

Palmetto Bay taxpayers can breath a sigh of relief on this round. 

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.

NEW LAWSUIT ALERT: LUXCOM files another lawsuit against Palmetto Bay.

The weekend read. I will update interested readers as new information becomes available.

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 case is presently 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 take time to review this latest lawsuit and report on details. This lawsuit was just filed. Palmetto Bay officials have not yet been served with the lawsuit, so they have not had time to review it. The Village is not under obligation to respond to this suit until it is served.

I will continue to keep you in the loop.

Your friend and neighbor,

Eugene Flinn

Friday afternoon update (11-6-2020):

Wasting no time, the LUXCOM attorney e-filed a 20 day summons that was issued same day by the Clerk of the Court. Perhaps this lawsuit will be served upon Mayor Cunningham next week.

Partial update on the LUXCOM litigation (Part of a series). Agreed Order rendered that provides deadlines.

The purpose of this post is to bring readers into the loop of just one of the several LUXCOM cases. I searched the Miami-Dade online court dockets to obtain this information. This update relates to the circuit court case of YACHT CLUB BY LUXCOM, LLC, v. VILLAGE OF PALMETTO BAY, FLORIDA, CASE NO: 2019-11663-CA-01. The parties reach an agreement that provides for a schedule of tis case. I am posting the specifics below. The trial Judge, the Honorable Spencer Eig, rendered an order based upon this agreement that provides as follows:

1. Pursuant to the Opinion and Mandate issued by Florida’s Third District Court of Appeal on July 21, 2020 in Case No. 3D19-1495 in connection with the instant action, this Court’s prior Order dismissing Plaintiff’s complaint with prejudice was reversed by the Third District Court of Appeal, with instructions for the case to be remanded for further proceedings before this Court. In accordance with these instructions, Defendant Village of Palmetto Bay, Florida is ordered to respond to the operative complaint filed in this action.

2. Defendant Village of Palmetto Bay shall respond to the operative complaint filed in this action by no later than ten (10) days from the date of this Order.

(EDITOR’S NOTE: Deadline is Saturday, Oct 10, 2020, so the applicable filing date falls on the Monday, October 12).

3. Fact discovery shall be concluded by both Parties in this case by no later than ninety (90) days from the date of this Order.

(EDITOR’S NOTE: Deadline: 90 calendar days after Wednesday, September 30, 2020 is Tuesday, December 29, 2020.)

4. Expert discovery shall be concluded by both Parties in this case by no later than thirty (30) days after the conclusion of fact discovery.

(EDITOR’S NOTE: This date does not fall from date of the order, but is 30 days after conclusion of the discovery. That date could change - all dates could change based upon circumstances. Assuming the fact discovery does conclude at the 90th day, the deadline would be Thursday, January 28, 2021. The 30th day depends upon discovery is completed, not necessarily 120 days from date of the order)

Now the real work begins on this case. There is an online docket maintained by the Miami-Dade County Clerk of Courts for those interested in watching this case.

For background, see prior related post: of September 28, 2020, Partial update on the LUXCOM litigation. Motion for status conference setfor Tuesday, Sept 29.

Partial update on the LUXCOM litigation. Motion for status conference set for Tuesday, Sept 29.

The purpose of this post is to bring readers into the loop of just one of the several LUXCOM cases. I searched the Miami-Dade online court dockets to obtain this information. This update relates to the circuit court case of YACHT CLUB BY LUXCOM, LLC, v. VILLAGE OF PALMETTO BAY, FLORIDA, CASE NO: 2019-11663-CA-01. 

We may know more about after the management and seriousness of this one case after a 10 AM hearing set for this Tuesday, September 29.  The Plaintiff, LUXCOM, is requesting an opportunity to appear before the Court for a status conference. That would required the participation of the attorneys for Palmetto Bay. Among other things, LUXCOM claims that it wishes to discuss and obtain guidance from the Court on the Mandate issued on July 21, 2020 by the District Court of Appeal of the State of Florida for the Third District in Case No. 19-1495. The hearing on the request will be heard before the Honorable Spencer Eig, via Zoom conference call. 

I am curious. This is a 5 minute motion calendar, not a special set, setting aside sufficient time to allow the parties to begin to discuss and work out (or agree on what they disagree upon) the issues of one particular case. Are the two sides talking and trying to reach agreement or will everything take extensive attorney billing time to reach simple procedural understandings? Perhaps there will be no hearing, but instead an agreed order wherein the parties will agree to set a special hearing to get deep into the issues relating to this case that was reopened by the Third District Court of Appeal after it reversed the July 19, 2019, order of Judge Eig that had dismissed the case. Discussion and future proceedings are inevitable. 

I will bring readers into the loop with updates once we see the first steps post appellate court mandate.

THE TOOL BOX:

June 24, 2020, Breaking News - Third DCA Reverses and Remands the LUXCOM case back to the trial court for further proceedings

June 10, 2020, Appellate court update: YACHT CLUB BY LUXCOM, LLC vs. VILLAGE OF PALMETTO BAY, FLORIDA, Third DCA Case Number: 3D19-1495, Lower Tribunal Case(s):19-11663

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 blog articles relating to LUXCOM - CLICK HERE

LUXCOM. Palmetto Bay has ceded the high ground and some officials have begun resorting to mischaracterization of the ongoing process. Next in the series.

The after event spin is consistent with past behavior of the this current mayor and council: the mischaracterizing, backpedaling, history revision and finger pointing has begun.  This is not leadership. 

I am bothered by by what occurred at the Special Council meeting that abruptly terminated on Wednesday evening (9/9/2020). The more I think about it - it is clear that something went terribly awry internally with the village council. This was not how the Palmetto Bay legal team intended the meeting / negotiations to go. This was to be a productive meeting set up through many months of preparation and negotiation to allow the Mayor and Council to move the negotiations forward from a position of strength from which the legal team could try to close a deal that would have been much more palatable to the Village residents. A result that Palmetto Bay could shape, rather than be shaped by the Courts. Instead the mayor and one council member demonstrated a lack of understanding of why they were there and got lost. Other members of the council tried to mitigate the damage but in the end tried to close the proceedings before more and irreversible damage was done. But it was apparently too late.

The first revision or mischaracterization of history - that it was a single member of the village council who pushed for 147 units at this Wednesday, September 9, 2020, Special Council Meeting. This is contrary to the record. The 147 number was reached and proposed long before the 9/9/2020 meeting:

147 - FACT -  the 147 units were previously offered up by the Village Council. 147 units was a number reached through the consensus of the council. 

A generally accepted meaning of consensus is that consensus means to reach agreement among those involved. 

The issue remaining, solely as to the number of units, for the village council was to either hold at 147 for the purposes of the ongoing negotiations or barter the 177 number proposed by LUXCOM as bargaining chips against all the other requests they propose.

We will never get to see what could have been accomplished as 3 of the 5 members of the Village Council (the majority) were unable to right the fast sinking ship and instead voted to close a process that they appeared to believe was not moving forward in a productive manner. Perhaps there could have been a reboot and a reconvene for more productive talks.  Unfortunately the damage was done, as I described in my PRIOR RELATED post from Thursday, September 10, 2020: Failed negotiations lead to the probability of yet another lawsuit filed against Palmetto Bay. Next in a series.

And finally, since I am posting quotes from online dictionaries: 

Thoughts from the Special Council meeting of Wednesday, September 10, 2020. Part of a series. Remember the number 30

Wednesday, September 9, 2020, was a very disappointing night. My initial concern is whether  the Palmetto Bay Village Council negotiating in good faith. There appeared to be little knowledge as to the substance or the seriousness of the issues surrounding LUXCOM from the Mayor or most of the other members of the Village Council. The LUXCOM proposal was circulated to the Village Council sometime in early to mid August, yet impressions were that some members of the council had not met with or asked questions of Village attorneys until 9/9. This after months of alleged negotiations (see prior posts on this blog regarding LUXCOM). It appears that was one of the attorneys who in reality called the meeting so they could actually for once get some uniform guidance from the Village council. The meeting went so poorly that after almost three hours 3 of the 4 council members voted to adjourn the meeting over the mayor’s objection (3-2 vote). The issue appears to be will this council take charge of this situation by making a decision or are they in reality just playing political games, dragging things out to try the patience of the LUXCOM lawyers, forcing LUXCOM to file suit and leave the decisions to the courts. This will provide the mayor and council with the next eventual scapegoat (the courts) for what goes wrong under their watch.

Here is a small bite from that meeting – unit numbers:

147:   Units the village council has offered LUXCOM through “consensus of the Council”.
177:   Units sought by LUXCOM
  30:  The number of units that separate the council consensus from LUXCOM 
  71:   The number that equals one unit an acre would be 71.

Has the current mayor, or have any member of the Village Council, disclosed or explained how there is a “consensus of the Council” offer of 147 came about without a public hearing? Or did I miss that disclosure?

For the record: 

177 units is 2.5 units an acre
147 units is 2.05 units an acre.
  71 units would be the promised 1 unit an acre

Note that the meeting of 9/9/202 was the 37th meeting of the village council (through 3 quarters of this calendar year). It was the 14th special council meeting since January 1, 2020, or the 16th special council meetings if you include the special budget hearings held in May, 2020. That is a lot of meetings. What is being accomplished, year to date?

And final note - there is not a single resolution or minutes posted for any of these meetings for the public to view. See the screen shot of the Village of Palmetto Bay's official Agenda Center (posted to the right). This screen shot was captured and is therefore accurate as of 2:30 PM on 9/10/2020.

The Mayor and council claim that this is where a member of the public can go to "View current agendas and minutes for all boards and commissions. Previous years' agendas and minutes can be found in the Document Center. Adobe Reader may be required to view some" What they don't tell you is you can read what they fail to post regardless of whether or not you have Adobe Reader. A minor fact that is left out. 

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

Update on LUXCOM – this is a question, not a statement.

I was advised that the mediation did go forward on Tuesday, July 14. And, like I predicted, there was no resolution. Unconfirmed reports are that the parties are to meet again in the near future, perhaps or week or two.  It is now July 17, and not a peep has been reported to the general public.

This all lines up with the prediction that I made in a Prior related post: LUXCOM - Tuesday, July 14, 2020 is mediation day. a day that will set the future of development in Palmetto Bay. Some thoughts.

“PREDICTION: Mediation will start, but will suspend and reset for another day further down the road, ….”

This was hardly a risky prediction as the behavior of this current council and their employees have become so predictable. But we move on to the next question: when will this mediation reconvene? I was hoping that someone would keep me in the loop, but even though this information is obviously made available to our elected officials, it clearly is limited in distribution only to those insiders who they deem need to know. The general public appears to been deemed non-essential for updates. Mushrooms anyone?

THE REALITIES: All of you should be aware that the process would be visible; that residents would be able to give testimony and participate, if only this zoning issue was being held at a publicly noticed zoning hearing. But it is not a zoning hearing, so we cannot observe and participate.

FAIR QUESTIONS: What if?

Things break down. It has become the new normal in Palmetto Bay. It is happening with the Franjo Road modifications, the bridge at Coral Reef Park, our legislative requests, and most recently with the sudden hiring fiasco of the manager-select, where a deal that wasn't was announced and celebrated prematurely, but in fact, behind the scenes negotiations broke down (as reported in the Barrow News-Journal) leaving egg all over the faces of the Palmetto Bay officials.

So chew on the above for a moment. Then look ahead to some of the very important issues:

“What if” an ‘agreement’ is reached on LUXCOM and this village council reacts the same way as the manager-select's proposed contract: where the council again substitutes their judgement for those whom they sent to negotiate and subverts this process by using the mediation process as a starting point and not a complete negotiation. Will council members bust that agreement in the same way the manager-select’s proposed contract went south, doomed to failure once brought before this mayor and council?

The public has been excluded so far in this mediation process with LUXCOM. And remember, this mediation is VOLUNTARY (vol·un·tar·y) – meaning this mayor and council set about this process acting upon their own free will. Their decision. Mediation was not forced upon this Village by lawsuit or any other reason. It could have gone through the usual zoning application process. We shall see if this non-traditional process was a wise decision or another “oops I did it again” fiasco.

Again, we will see how this unique process plays out; hopefully better than the manager selection process to date.

FINAL THOUGHTS: There are two opportunities to properly update the public next week - the first is the special council meeting for Tuesday, July 21, 2020 at 5:30 PM. There is a single item noticed, only the following Resolution with public comments is currently notice to be heard during this special meeting:

• A RESOLUTION OF THE MAYOR AND VILLAGE COUNCIL OF THE VILLAGE OF PALMETTO BAY, FLORIDA, RELATING TO EMPLOYEE BENEFITS; APPROVING A TWO-YEAR CONTRACT EXTENSION WITH RISK MANAGEMENT ASSOCIATES, INC., D/B/A PUBLIC RISK INSURANCE ADVISORS TO PROVIDE AGENT-OF-RECORD SERVICES TO THE VILLAGE OF PALMETTO BAY AT A COST OF $22,500 PER YEAR; AUTHORIZING THE VILLAGE MANAGER TO EXECUTE APPLICABLE DOCUMENTS; AND PROVIDING AN EFFECTIVE DATE. 

And if one special council meeting was insufficient to satisfy your hunger to watch zoom council meetings, perhaps there is still time to notice a LUXCOM update to be presented at the second special council meeting of that week, set for Thursday, July 23.  This second special council meeting starts at 6:30 PM and involves attempting to resurrect the search for a new village manager.

Perhaps, for once, either item on either day can move smoothly through approval and the Village Charter officers can in good faith determine how to add on items in order update the council and the residents regarding LUXCOM. However, it would be a shame to hear that we, the people, should be locked out for the loop as it “may adversely impact the negotiations.” Really? This is not secret information as we all know LUXCOM representatives and those they report to have are in the loop as to the status, so by the same token, shouldn’t those who our elected officials report to (HINT: “We, the people”), be similarly situated in the know?

This is representative government. Government in the Sunshine. It is our right to know. Again, not your legal theory, but the status of demands, offers and counter-proposals.

LUXCOM - Tuesday, July 14, 2020 is mediation day. a day that will set the future of development in Palmetto Bay. Some thoughts.

Residents of Palmetto Bay were promised 1 unit an acre at the LUXCOM property, formerly known as the FPL property. So how is that working out?This is another of a series of updates relating to this land use issue that may set a precedent for years to come.

The "mediation" is set for Tuesday, July 14, 2020. I put the quotes around mediation as there is no Bert J Harris claim lawsuit filed, at least yet. Pre-suit mediation do happen by agreement of parties, but the fact of this matter is that this matter could have been worked in the public through a zoning hearing, where residents could have attended and put in their testimony, their input into the final numbers. 

At last check, the negotiations offered by Palmetto Bay officials included the following:

• 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

The one unit an acre zoning was represented as fully defensible by both the Mayor Cunningham and Vice Mayor DuBois. If this is true, 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. 

Perhaps this is less about political promises, but in reality demonstrates that the current administration is out of their depth, unable to fully grasp zoning issues and property rights.

Should the council exceed 1 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.

But now is not the time to interject, let's see what happens. Perhaps Palmetto Bay Village Officials will keep their promises and fight to reign this project in and keep the 1 unit an acre designation that was promised to the voters, the residents of Palmetto Bay.

Fair questions:

• How long will we be kept in the dark as to any agreement reached at this mediation? 
• Will an impasse be announced the same day? 
• Will a proposed settlement be announced or will we have to wait until the proposed settlement is released in an agenda for a special council zoning meeting to approve the proposed settlement? 
• What happens if a majority of the Village Council rejects that proposed settlement, or, 
• One possible result being talked about - an announcement that no agreement was reached; that an update mediation will take place after the respective attorneys confer with their respective clients (one possible translation: pushed off until after the upcoming elections).

PREDICTION: Mediation will start, but will suspend and reset for another day further down the road, preferably after the upcoming elections.

Breaking News - Third DCA Reverses and Remands the LUXCOM case back to the trial court for further proceedings

“Reversed and remanded” – the decision of the 3 judge panel from the Third District Court of Appeal in the opinion released today, Wednesday, June 24, 2020, in the appeal of  Yacht Club by Luxcom, LLC, vs. Village of Palmetto Bay, No. 3D19-1495, June 24, 2020 

The Judges concluded that Yacht Club’s complaint, seeking a declaration as to the validity of two provisions of the Village’s code, states a cause of action for declaratory relief under chapter 86. The Judge of the Third District therefore, reversed the trial court’s dismissal order and remand for further proceedings.  In other words - unless there is a change of heart in a motion for rehearing, this matter goes back to the trial court for more litigation.

Note that this opinion is not final until disposition of timely filed motion for rehearing, if one is filed.

CLICK HERE to view the full eight (8) page order rendered Wednesday, June 24, 2020.

I will dive deeper into this order as time permits, but I wanted to get the information relating to this case and its immediate impact to my readers.

EDITOR’S NOTE – BOTTOM LINE – it’s the process employed –using an ordinance - and not any notice or failure to timely notice by any member of the village staff.  From my review, it is my opinion that this matter should have gone to a proper zoning hearing rather than political posturing and acting though an ordinance.

The Court:
While we express no opinion on the merits of Yacht Club’s claim, we have little difficulty concluding that the claim, as pled by Yacht Club, is cognizable under chapter 86. Section 86.021, in particular, provides in relevant part as follows: “Any person . . . whose rights . . . are affected by a statute, . . . or by municipal ordinance . . . may have determined any question of construction or validity arising under such statute . . . [or] municipal ordinance.” § 86.021, Fla. Stat. (2019). 

The proposed ordinances – essentially initiated by an agenda notice rather than an application – would change the allowed uses of property owned by Yacht Club. If the challenged provisions of sections 30-30.7(a) and 30-30.8(a) are invalid, as alleged, because they run afoul of the requirements of section 163.3181, then presumably the Village’s proposed ordinances would need to be initiated by application. Because Yacht Club’s rights are affected by the process that the Village is currently employing to initiate land use changes to Yacht Club’s property, Yacht Club’s claim – alleging an injury sufficient to warrant redress – is ripe for adjudication ….

More to come