Palmetto Bay Village Center Litigation Update – Petition for Cert (a form of appellate review). Palmetto Bay’s response due May 11, 2022.

This update relates to the Petition for Certiorari  (a form of appellate review) filed by the applicant Palmetto Bay Village Center (PBVC) in the case styled as 17777 OLD CUTLER ROAD, LLC VS VILLAGE OF PALMETTO BAY, FLORIDA ET AL, case number: 2022-000012-AP-01 . I am working to truly keep interested readers in the loop.

The Court rendered an Order to Show Cause on Thursday, April 21, 2022. This Order is the procedural next step in this case, it in no way indicates that either side has an upper hand in this matter. The Village of Palmetto Bay is now required to file its Response to the Petition for Writ of Certiorari within twenty (20) days of the April 21, 2022, order.

IMPACT:  The Village response is due to be filed no later than Monday, May 11, 2022 (barring any requests for extension of time).

The Village Council was waiting for this order. I expect the Village Attorney to seek an Executive Session with the Village Council to discuss the case and then proceed as instructed by this Mayor and Council.

Does an eventual ruling in this case end the litigation? No. Either party may appeal the eventual Cert decision to the Third District Court of Appeal (3 rd DCA). This is also one of two separate cases filed on the same manner (different relief is sought, two separate cases required).

BACKGROUND - see prior related post of April 1, 2022, More litigation for the Village – The Palmetto Bay Village Center has filed for judicial review – a big read. Initial review and impression – links to critical documents provided

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  (the case discussed in this post)
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
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

Litigation update – short bite – Expect Palmetto Bay’s initial response to the latest Palmetto Bay Village Center lawsuit to be filed sometime in May, 2022.

The Village of Palmetto Bay was served with the Complaint for Relief on April 11, 2022.  CLICK HERE to view the notice of filing – Return of Service and other documents. This case is styled 17777 Old Cutler Road, LLC, v. Village of Palmetto Bay, Florida, Case No.: 2022-006141-CA-01. CLICK HERE to view the 258 page complaint.

IMPACT:       The Village of Palmetto Bay is expected to file the initial response sometime on May as the deadline for filing may be enlarged by agreement or upon motion to and order of the court.

The response could be an initial Motion to Dismiss filed to test the sufficiency of the complaint of Palmetto Bay may plan on filing its Answer and Affirmative defenses.  We are not in the loop as to what action they may take and the Village is most likely still considering their options at this time.

BACKGROUND - see prior related post of April 5, 2022, More litigation! In fact, a second lawsuit was filed April first (no joke) along with the Cert action. This case is styled 17777 Old Cutler Road, LLC, v. Village of Palmetto Bay, Florida, Case No.: 2022-006141-CA-01 details and links provided.

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  (the case discussed in this post)
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
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

Update: Will the 22 acres of the Palmetto Bay Village Center be saved? Seeing red. The current owners demand village protection for this land.

Warning to Palmetto Bay residents: the owners of the Palmetto Bay Village Center (PBVC) has drawn the line in regard to the continual gamesmanship of Palmetto Bay officials:

If the Council or you are not willing to except the free land as part of the site plan approval, then my client intends to evaluate its options with respect to the entirety of its 80 acres. 

What are the options of Palmetto Bay Village Center?

How long can the current Palmetto Bay officials act like they want save endangered lands, while really intending no such thing?  It is amazing. You really have to hunt for clues, crumbs and tidbits to cobble together in order to separate fact from fiction regarding the intent of the current Palmetto Bay elected officials. This is why transparency is so important. This is why failure to provide actual substantive updates in staff reports; failing to post items such as resolutions and minutes from meetings is so detrimental to the public’s right to know. The current mayor and council want people to give up. I won’t. So I am providing an update in regard to the Palmetto Bay Village Center (PBVC):

The Owners of the PBVC have grown tired of the monkey business of some of the elected officials here in Palmetto Bay.  See the full letter 3 page letter of October 6, 2020, by Eileen Ball Mehta, Esq., Bilzin Sumberg Baena Price & Axelrod, LLP. of October 6, 2020 (CLICK HERE). See an excerpt below:

We are completely confused by the conflicting messages that we have received. For years the residents and public officials of Palmetto Bay have entreated my client to help save this precious land for future generations. The Village adopted a resolution to achieve that goal. In your e-mail of April 16, 2020, however, you said that the land was "worthless." One might think that that mixed-message is confusing enough, but the Village has now reached out to us about spending taxpayer dollars to buy this so-called "worthless" land. I cannot comprehend why the Village would want to buy the land rather than accept a donation for free with only modest restrictions to protect it from despoliation.

(They, the owners of the PBVC) will not accept your re-written version of the Declaration (that written by the current Village attorney under direction of the current mayor and council) as it provides absolutely no protection of the land. If the Village is still interested in the donation, then we insist that, as part of the site plan approval by the Council, the Declaration be in substantially the form sent to you and the Council on September 1, 2020. If the Council or you are not willing to except the free land as part of the site plan approval, then my client intends to evaluate its options with respect to the entirety of its 80 acres. (Emphasis added)

CLICK HERE to view the "red lined" version of the proposed declaration. It must be read carefully to be believed. The proposed charges are enough to turn any true environmentalist 'red in the face'!

CLICK HERE to view an original unaltered version of the covenants prepared by Bilzin Sumberg Baena Price & Axelrod, LLP. 

One opinion from a confidant who review these same materials prior to this post: "(The) letter is straight to the point and shows the lack of interest from the village."

Is this land worthless? Are some current Palmetto Bay officials in over their heads? Some recent insight by noted environmentalists:

October 18, 2018, What’s So Special about a 22 Acre Forest on Old Cutler Road, by Eduardo Varona, Guest Post  and,

April 26, 2018, "Twenty-two acres of preserved pine rockland, protected from future development, is extremely significant for endangered animals that are being pushed out of their primary habitat." - Al Sunshine, President of the Miami Pine Rocklands Coalition, Inc.

Also see the October 2014 Palmetto Bay Op Ed concerning (Then) Mayor Shelley Stanczyk's attempt to zone the 22 acres for development. Mayor Stanczyk: Using the promise of a fire station as bait to develop protected native areas.

Is calling the property worthless, a purchase strategy? Perhaps we can start to see through the Strategy of the Current Mayor and Council. Call the land worthless and offer them $10 (ten dollars) to take this worthless land off their hands.  Nice try, but won’t fly. Why? Because in 2014 a prior mayor, Mayor Stanczyk nearly granted developmental rights for 40 units and a fire station for this same property. That has substantial value. See the 7/22/2014 article, Palmetto Bay council defers old Burger King property zoning; approves Palmer Trinity’s site-plan changes, by Lola Duffort. 

We had a prior appraisal of the 22 acre portion of this property completed prior to 2009.  EELs would have participated and paid 50% of the purchase price. Real estate prices change. That and government doesn’t set value. Purchase prices must conform to appraised values.  Do Palmetto Bay officials have an appraisal that demonstrates that these 22 acres are “worthless”? Cutler Bay recently negotiated to purchase 8.45 Acres of land along Old Cutler Road, located from 184th Street to Cutler Bay subdivision. The developer previously attempted to build 29 units on those 8.45 acres. The negotiated price is $8.45 million or $1 million an acre. The property is currently under a "Letter of Intent" and is not binding on the Town of Cutler Bay if the appraisals come in below that amount. I believe that the appraisals did come back and were in the range of 411.25 or $11.5 million for those 8.4 acres, or over $1.3 million an acre.

Based upon Cutler Bay’s recent action, you can bet that the current (2020) appraised value for the 22 acres of the PBVC will come back somewhere between $8.45 Million to $22 Million.

CLICK HERE to review the backstory, most recently in a post of September 23, 2020, Save, don’t pave the 22 acres! Residents, the original village council and I agree with the representatives of the Palmetto Bay Village Center – we all want the 22 acres to be permanently preserved. Protection needs to be by covenant, for 50 years plus, not a mere development order. An important read for anyone concerned with protecting the environment. I make that case that it takes a full, enforceable covenant. Why a covenant? Because a development order could be modified by a simple majority vote of this or any future mayor and council.  We need real environmental protection of 22 acres at the Palmetto Bay Village Center (PBVC).

This one time when the applicant is right and the current Palmetto Bay Mayor and Council are WRONG.

Please take the time to review the concerns outlined by Sara Barli Herald, Esq., Bilzin Sumberg Baena Price & Axelrod, LLP. In the 4 page letter of September 16, 2020 (CLICK HERE) as well as the updated 3 page letter of October 6, 2020, by of Eileen Ball Mehta, Esq., also of Bilzin Sumberg Baena Price & Axelrod, LLP. (CLICK HERE).

Save, don’t pave the 22 acres! Residents, the original village council and I agree with the representatives of the Palmetto Bay Village Center – we all want the 22 acres to be permanently preserved. Protection needs to be by covenant, for 50 years plus, not a mere development order. An important read for anyone concerned with protecting the environment.

Why a covenant? Because a development order could be modified by a simple majority vote of this or any future mayor and council.  We need real environmental protection of 22 acres at the Palmetto Bay Village Center (PBVC).

This is one time when the applicant is right and the current Palmetto Bay Mayor and Council are WRONG.

Please take the time to review the concerns outlined by Sara Barli Herald, Esq., Bilzin Sumberg Baena Price & Axelrod, LLP. In the 4 page letter of September 16, 2020: 

This goal is entirely consistent with the actions of the Village Counsel and opinions voiced at public hearings in 2016. We believe, therefore, that the Declaration as drafted and approved by our client (a copy of which is attached) is necessary to protect and conserve this land for the benefit of future generations.

The attorney for the PBVC went on to state that they take issue with Palmetto Bay officials, who, through their Village Attorney:

… eliminated the majority of the environmental protections included in the draft Declaration that we had submitted to you. Instead, you placed on the agenda a stripped down version that completely disregards the environmentally sensitive aspects of the site. The following very important recitals, restrictions and provisions were stricken by you:

·       County Resolution R-469-08 adding the property to the Environmentally Endangered Lands ("EEL") Program Priority B Acquisition List

·       Village Resolutions 09-11 and 2017-53 affirming and reaffirming support for EEL decision and acquisition of site

·       Excerpt from County Home Rule Charter Section 7.01 pertaining to properties acquired for preservation and acknowledgment of requirements of Charter

·       Definition of "Passive Park"

·       Provision that restrictions shall be perpetual

·       Restriction limiting passive trails to pedestrians and non-motorized vehicles

·       Provision that a structure shall be ancillary to the passive park and limited in size

·       Provisions containing parking areas to designated locations

·       Prohibition against commercial signage

·       Designating residents and property owners of the Village as beneficiaries of the Declaration with rights of enforcement

 As a result, you have created a document with no teeth. Although you retained statements that environmental assets and natural landscape shall be preserved, those statements are aspirational only. With no designated beneficiaries and no enforcement mechanism, the Village will be at liberty to build with impunity whatever structures, roads or parking lots it may desire on environmentally sensitive land.

The entire excerpt above was taken from page 3 (of the 4 page letter).  CLICK HERE to view the correspondence of Sara Barli Herald, Esq., Bilzin Sumberg Baena Price & Axelrod, LLP., of September 16, 2020

You really must read this entire letter.

Protecting the 22 acres. The Palmetto Bay Village Center (PBVC) offers up a detailed 50 year covenant to protect the 22 acres of precious environmentally sensitive land. Palmetto Bay officials object. Why? A very important read. My opinions included.

An insight as to why things are in Palmetto Bay.

Why does it appear that the owners of the Palmetto Bay Village Center (PBVC) are more concerned about protecting these 22 acres than our current Village officials (Council Member David Singer excluded as he has been on record as working to protect these 22 acres).  

The PBVC is working toward completing long term work to deed over these 22 acres; land that was designated as environmentally endangered by Miami-Dade County in 2008 [at the request of the original mayor (me) and village council], a designation supported by Biscayne National Park. In 2009 and again in 2017 the Village expressed continued support for public acquisition of this precious land. Quite frankly many of the current elected officials have played so many divisive political games with this property, that I believe they have boxed themselves in and don’t know who to resolve this issue.

Regardless, of the games, the PBVC may be nearing the finish line regarding protection of this land; however, opposition appears to be rearing its ugly head in a passive aggressive manner.  I provide links to read in full the complete 5 page DECLARATION OF COVENANTS, CONDITIONS, AND RESTRICTIONS, (CLICK HERE) prepared by: Sara Barli Herald, Esq., Bilzin Sumberg Baena Price & Axelrod, LLP. As well as a 4 page letter from Sara Barli Herald, Esq. (CLICK HERE) You should read them so the parties involved cannot allege that anything is being misquoted (as they so often like to do).

Why do so many ongoing issues involving the Current Mayor and Council appear to be a knife fight rather than rational conversations held in public? I include the following in these examples: LUXCOM, the DUV, litigation against Miami-Dade County (Over a 4 way stop) and now the PBVC, Why can’t we engage in protecting our environment without making it appear that Rock Pinelands is a bad idea (maybe protecting Pinelands are a ‘Liberal’ issue for them).

My takeaway, my opinion, is to question why it appears that they believe that this proposed Declaration “does not need to exist”? I believe that it certainly does, especially under the conditions provided and especially for the term of 50 years (if not even 100 or in perpetuity unless and until it would be modified by a 75 percent vote of the village electors, again after the initial 50 year term). I quote from this letter from Counsel for the PBVC (dated 9/16/2020) where in the statement is made, top of page 2, that:

“You made it very clear at the September 1 public hearing that you think that the proposed Declaration does not need to exist.”

Attorneys for the PBVC continue to make clear that it is their position that:

“The property that our client intends to donate to the Village (the "Donation Site") includes mangroves, pines and hammocks that are prized for their beneficial wildlife usage and biological diversity. Substantial portions of the Donation Site were designated as environmentally endangered by Miami-Dade County in 2008, a designation supported by Biscayne National Park. In 2009 and again in 2017 the Village expressed continued support for public acquisition of this precious land, contingent upon securing a small portion of the Donation Site for use as a fire station.”

I wholeheartedly agree. And that is why I have worked since this village incorporated to obtain this land to be held by the public, to maintain it (for all the reasons stated in the Declaration of Covenants prepared by Sara Barli Herald, Esq.)

The entire four (4) page letter should be carefully read in its entirety as it provides a recital of the ongoing history of efforts to obtain and preserve this land. I am proud that I have participated from inception and have been a large part of this effort as were so many others, unfortunately none of those who currently sit on the council have any institutional knowledge or prior involvement other than (for some) their work to undermine and frustrate the efforts to pull this property off the development list and protect these 22 acres for our future generations.

A prior mayor, (not me!) once even sponsored legislation to allow development of these 22 acres. This was a proposal to build houses in these very 22 acres, deferring only temporary (until the process ended with the 2014 election).  Factual information can be found online - See the 7/22/2014 article, Palmetto Bay council defers old Burger King property zoning; approves Palmer Trinity’s site-plan changes, by Lola Duffort.  

 Please read the complete 5 page document, the DECLARATION OF COVENANTS, CONDITIONS, AND RESTRICTIONS, prepared by: Sara Barli Herald, Esq., Bilzin Sumberg Baena Price & Axelrod, LLP.

It is my opinion that the follow restrictive covenants are critical! So why do Village Officials appear to be refusing to provide for these very important protections? Number 8 is critical in that it states that this is intended to benefit and run in favor of the residents and property owners of the Village and (best of all) they (we, the people) shall have the right to enforce, all restrictions, conditions and covenants imposed by the provisions of this Declaration. (all emphasis added)

The Covenants protect this property for a 50 year period. It is also a comprehensive, well-reasoned covenant, not merely a “visual barrier”.

My closing plea: It is time to close this chapter in Palmetto Bay politics. I realize that some will lose the very political football that they have enjoyed employing, but it is time for leadership, political maturity and bring an end to these 22 acres – for at least the next 50 years!

The residents of Palmetto Bay need this covenant. And residents should demand an additional requirement that forbids a modification of the covenant unless approved by a super majority of the residents. A zoning development order sounds nice, but can be easily set aside by a 3-2 vote of the village council. A covenant needs to be put in place.

Follow ‘read more’ to view items with more specificity. I have set out the main covenants. I remain insistent that you read the entire 5 page document.

Opinion - How did this council get to a recommendation in favor of the 480? There once was a procedure to ‘undo’ the 480, but the present mayor and vice mayor appear to have dropped that effort, allowing staff to recommend 480.

As I no longer hold office, I can only offer my opinions as to the ongoing issues relating to the Palmetto Bay Village Center (PBVC). I have always fought to preserve those 22 acres, not see them developed. Twice I asked the council to join me in participating in the purchase through the County Environmentally Endangered Lands Program (EELs).

THE SHORT BITE:

The Vice mayor had the opportunity to repeal the 2016 ordinance relating to the PBVC. Former interim Village Attorney John Herin, Esq. was hired at village expense to advise the council on how to repeal this 2016 ordinance. The repeal ordinance was prepared and passed 3-2 on first reading which was held way back on April 3, 2017.  This was a special council meeting that was called (requested by the vice mayor) for Independence Day weekend, 2017, (yes, a Saturday, July 1, 2017) – Soon after - and inexplicably, the second reading was deferred by a 5-0 vote. (CLICK HERE to view the ordinance folder  

The Vice Mayor had the votes to “undo” the 2016 ordinance, beginning on December 5, 2018, if this is really what he desired however the ordinance was never brought forward for enactment. In a complete 180,  the Staff operating under Mayor Cunningham and Vice Mayor is now recommending approval of the 480.

Failure to follow through has led to the PBVC seeking the present zoning on the 2016 & 2018 ordinances. It did not have to come to this had the repeal ordinance been properly and fully pursued. 

Promises not kept?

Also see PRIOR RELATED POST relating to the library parking: June 1, 2020

Correcting the record. The parking easement lasts for as long as a library, community room and Park operate as provided for in Resolution 2008-20. This was approved by the (then) Village Council on February 25th, 2008. Why would they lie, is it intentional or do they honestly don’t know the facts?

Parking is locked in for as long as this library and the park operate. 

THE FULL STORY PROVIDING A BRIEF INTRO & BACKGROUND/CONTEXT

Their fingers are pointing at others in deflection, but this is just another clear example where the buck stops at Mayor Cunningham and Vice Mayor John DuBois. The Vice Mayor spent village tax dollars to obtain a written legal opinion from John Herin, Esq, former interim village attorney as far back as March 2017. The result was  a 14 page treatise stating that the 2016 ordinance can be undone and providing the road map on how to do it.  The vice mayor felt strong enough that significant village funds were spent to obtain this legal opinion as an effort to undo the 2016 ordinance. Yet it moved forward and passed on first reading and then it stopped after a single deferral. This ordinance would have rescinded, undoing the 2016 ordinance.

The 2016 ordinance:

Then Mayor Shelley Stanczyk had sponsored an ordinance in July of 2014 that would have permitted the immediate development of 40 units in the 22 acres as well as a fire station. A little noticed fact was the July 2014 ordinance would have placed these 22 acres into the VMU, which would have vested the PBVC with 10 units per acre for a potential total build out of  220 units on those 22 acres. See: May 5, 2016, The facts regarding council action of Mon, 5/2/16. Protecting endangered land, managing vest rights inherited from Miami-Dade County.

The 2016 ordinance was passed not to create more units, but merely to transfer the developmental rights (known as TDRs) from the 22 acres to the back area of the Palmetto Bay Village Center (PBVC). This area was created as what is known as the Village Mixed Use, or VMU district. No one (except apparently Mayor Stanczyk) has ever wanted to see those 22 acres developed. 

Saving the 22 acres through transferring the developmental rights (TDR) is one way, but obviously not the way that the Vice Mayor felt appropriate.  In fact, at one time the ordinance was proceeding through the 2016-18 village council – the ordinance passed 3-2 on first reading held April 3, 2017. A special council meeting was called (requested by the vice mayor) for Independence Day weekend, 2017, (yes, a Saturday, July 1, 2017) – where, inexplicably, the second reading was deferred by a 5-0 vote. (CLICK HERE to view the ordinance folder  

More importantly – the Vice Mayor had the votes to “undo” the 2016 ordinance, beginning on December 5, 2018, if this is really what he desired however  Du Bois did not change back the 2016 ordinance. In a complete 180,  the Staff operating under Mayor Cunningham and Vice Mayor DuBois is now recommending approval of the 480.

The inexplicable in-action runs in stark contrast to what we heard from them in both the 2016 or 2018 elections.

Perhaps it is really the current Mayor and Vice Mayor who have turned their backs on Palmetto Bay!

There once was plenty of time for Mayor Cunningham/Vice Mayor DuBois administration to follow the March 2017 repeal manual provided by John Herin, Esq. There have been 78 meetings with the new council (and we all know there is nothing that prevents this current mayor and council from calling yet another special council meeting) – and yet this council never discussed it or let out a peep during any of them. Yes, though it made for great campaign fodder, the Mayor Cunningham/Vice Mayor DuBois administration never got around to doing anything to ‘fix’ this 480.

Results - there was no action to keep promises to 'undo' the "485"! 

So here we are – the Mayor Cunningham/Vice Mayor administration is recommended 480! Village paid traffic and zoning experts provide evidence in support of the Palmetto Bay Village Center. Instead of having done their jobs, the backs of these two were turned. Fingers pointing. I am waiting for their voices to blast through their proxy psudeo concerned group in their best ventriloquism act through email. And not only are they taking the 22 acres that I fought for and he argued against, but they are buying up the 18 acres we all agree are undevelopable (and not useable for park). 

Does this show laziness on his part or is this an admission that I have been right all along?

Why do I opine that the Vice Mayor never wanted the 22 acres? From his own comment in an e-mail wherein he specifically stating that it would be very unlikely to ever be any foot traffic through what he describes as a “mosquito infested park”. The Vice Mayor characterizes the entire “40 acre village park” as follows:

a. The 22 acres is discussed above, the other area is 18 acres of wetlands that will never be developed for anything nor will there likely be foot traffic through there as a mosquito infested park.

b. The 22 acres in question has had poor maintenance over the years and will require a tremendous amount of taxpayer money to bring it up the standards of a Palmetto Bay park property and then maintain it. IMHO, the current developer should be fined for neglect or be forced to bring it up to reasonable standards (at a bare minimum, trim back all 3000 foot frontage on Old Cutler road away from the bike trail). Is it $20K/year or $200K/year of village taxpayer money that will support it. Look at Thalatta Park, we were sold at $40K/year to maintain it, the village spent under two million dollars over the first 8 years for maintenance and to make needed improvements to it.

There you have it – 78 meetings where it was the Vice Mayor who firmly turned his back on Palmetto Bay. One has to wonder if the Zoning hearing of 6/2 was really unable to go forward or if the Mayor Cunningham/Vice Mayor DuBois administration finally woke up once they started receiving complaints and needed time to regroup and revise (or reverse)  the staff recommendations of their handpicked interim staffers.

The wagons are circled and their campers are gearing up for their volley of blame, smear and innuendo, but the facts remain. Its more than the numbers – 480 is the unit number. 78 is for the number of meetings where they could of, but failed to act, 40 (or 38) is the number for acres of land that the Vice Mayor has never wanted to take, but is there for the transfer.

Gamesmanship. Thankfully even in politics, the facts and truth sometimes rise to the top. They could delay it, but the realities of the Mayor Cunningham/Vice Mayor DuBois administration should now be obvious to those keeping a close eye on this village and the internal politics of shame.

In other words, either a sincere apology is due or someone has some serious explaining to do! The ball has been in their court. Action is long overdue. As I stated, an explanation is in order as to why village money was spend on legal opinion and assistance in reversing the 2016 ordinance, yet it was never completed, despite having the legal assistance as well as the votes to do so.  Their (lack of action) speaks so much louder than their words –or the shallow arguments of their puppet masters who continue to deny that they sat silent when Mayor Stanczyk sponsored the process to actually develop those 22 acres in 2014.

The facts about the Palmetto Bay Village Center. Its not 485, its never been 485.

We hold the cards.  My opponent and her team either do not get it about the 22 acres or they have no qualms about deliberately spreading misinformation.

It could not be any simpler: The developer must transfer the 22 acres to the village as a condition to any change in developmental rights at the Palmetto Bay Village Center.

Not transferring the 22 acres means that that the developer has no right to 85 units, granted or reduced.

Not transferring the 22 acres to the village means that that the developer's rights remain as existed since 2008: 300 senior units, 100 town homes.

There has never been and never will be 485- based upon the traffic chokeholds that we placed in the ordinance we passed 3-2 in 2016.  We are in some serious negotiations, and those negotiations are delicate. The negotiations require that politics be put aside and we speak in a unified voice.

So far these negotiations are playing out as expected at the Monday, Oct. 15, hearing as the PBVC owners:

• Objected to this ordinance, also alleging the timing is premature.
• Threatened to not deed over the 22 acres (actually 40 acres) unless they get their way.

Strong leadership stands up to threats.  We countered with the fact that the PBVC loses all of their rights of the 2016 ordinance if they walk away, reverting back to the 2008 rights. The owners of the PBVC don't want this.

Here are some of the concessions I achieved Monday night (October 15, 2018):

• The owners admitted that the final number will not be "485". 
• The representative for the PBVC mentioned that negotiations are ongoing for 200 -- half of the units -- to be Senior housing units. That's a HUGE offer in regard to traffic reduction.

The Village Manager and our Village Attorney will now enter into negotiations that should result in a significant reduction of the overall impact of this property AND obtain endangered Pine Rocklands.

None of the above would have happened if Councilman Singer had not brought this ordinance forward. None of this will happen, or our final results will be reduced if we don't stand together.

Being mayor is a special responsibility that I take very seriously. I have to continue to work hard and represent the best interest of the Village. Contrast this with a candidate and her supporters who undermine the process for there own political gain.

What’s So Special about a 22 Acre Forest on Old Cutler Road, by Eduardo Varona, Guest Post

Many have questioned over the last decade what is the importance of 22 acres of privately owned native forest on the east side of Old Cutler Rd just north of SW 184 St in Palmetto Bay. Some have claimed and said it is a protected forest. The private owner at times has wanted to develop it and at times seems to want to protect it. Politicians have even fallen on their own swords actually proposing to develop it. At times part of the forest was even looked at for a fire station to serve the surrounding neighborhoods. 

In the last four years there has been a serious push to finally give steadfast lasting protections to this forest through a deal between the Village of Palmetto Bay and the private owner, the Palmetto Bay Village Center (PBVC). This agreement would involve a transfer of developmental rights from the 22 acres east to the parcels surrounding the PBVC. And Palmetto Bay would receive the 22 acre forest as the newest passive park in the “Village of Parks”.

So this begs the question, do the 22 acres of forest need protection? Is this privately owned forest currently protected from development now and in the future?

The answer to the second question is a very certain NO. The 22 acres have never been designated a Natural Forest Community (NFC) by the County and therefore are not protected whatsoever under County laws. To have been designated an NFC the private owner could have approached the county and asked for an ecological and biological assessment of the site. This has never happened. Had it happened, due to the relatively well maintained condition of the forest it would most likely have been designated an NFC. However, even if it had been designated an NFC it would only have protected a percentage of it from development, not all of it. 

What about a covenant that allegedly exists or existed that allegedly protects the forest. Well, depending on who you ask and on which side of the bed they woke, there is a covenant of sorts that is enforced by the Village. A covenant that the Village agrees is soon scheduled to expire.

But in actuality that covenant doesn’t protect the forest at all. It only protects the homes across from the forest along Old Cutler Rd by maintaining a “visual buffer” so that those homes can’t see the PBVC building. That is the extent of the covenant which is due to expire in 2019, if you ask the experts. Finally, is there interest by the private owner to develop the forest? Well why wouldn’t there be as it is prime real estate right on old Cutler Rd. If not protected, someday it will be developed.

Now let’s go back to the original question, the title of this writing. What’s so special about a 22 acre forest on Old Cutler Rd? This forest is very special indeed.  It is one of the last remaining remnants of the tropical rockland forest ecosystem that covered Miami-Dade County before we bulldozed 98% of it. Yes there is roughly only 2% left of this forest ecosystem left in all of South Florida. Most of this ecosystem existed almost exclusively in South Miami-Dade. And day by day we lose additional acreage to development and neglect. 

Specifically, the 22 acres of the PBVC is a tropical rockland forest composed of rockland hammock and pine rockland. These two forest communities exist on the oolitic limestone ground in a fluid equilibrium with each other as the land can transition back and forth between the two distinct plant communities in a natural and controlled process influenced by fire, hydrology, and by man. The species diversity both plant and animal that this 22 acre forest harbors cannot be measured in dollars. It should not ever be measured in dollars. In fact some years ago, the 22 acres was nominated for inclusion into the County's Environmentally Endangered Lands (EEL) acquisition program.  County biologists assessed the site in response and documented the important habitat values.  As a result, the Board of County Commissioners added this site to the list of lands that EEL should purchase for management and protection.  The land has remained on the list ever since awaiting funding for purchase.

Roughly half of the 22 acre forest is pine rockland with the rest consisting of an oak hammock also containing trees such as mastic and gumbo limbo. Yet it is a little known fact that pine rockland is a worldwide endangered ecosystem and plant community which only occurs in Cuba, Bahamas, and yes, Miami-Dade County, and only in South Dade. 

There is more that makes this 22 acre forest more unique than other similar parcels in South Dade. This forest is one of the last remnants of a vast coastal forest that existed in a long ecotone where the forest met the South Dade coastal wetlands and then beyond that Biscayne Bay. And there is even more that makes it so special. 

Few understand that all throughout the Miami coastal ridge where now lie the municipalities of Palmetto Bay, Cutler Bay, and Pinecrest there existed transverse glades, also known as finger glades. These transverse glades, traversed the coastal ridge as creeks and fresh water wetlands that in the wet season flowed with fresh water from the Everglades all the way to Biscayne Bay. One very large transverse glade occurred in the area known as Bel Aire in Cutler bay and it ran northeast into Palmetto Bay emptying most of its fresh water into Biscayne Bay at the Deering Estate.  This same transverse glade, now a canal, at one time also fed this 22 acre forest and the coastal wetlands abutting it with a seasonal seepage of subterranean ground water through the porous limestone underfoot. In fact an unusual tree species for this location so close to the coast still lives on the edge of these 22 acres at the spot where it once met the coastal wetlands. The Swamp Bay, a tree in the Avocado family, mainly occurs in the Everglades tree islands and in transverse glades. And that a specimen of this tree still grows on the edge of the 22 acre forest is evidence of the strong Everglades fresh water connection that once existed at the site.

So to come full circle, the 22 acres is significant in of itself as one of the last remnants of a vast tropical rockland coastal forest that once existed but is now mostly gone. However, the last piece of the intricate story is that this 22 acre forest lies right beside the Biscayne Bay Coastal Wetlands (BBCW) restoration project which is an integral component of the Comprehensive Everglades Restoration Plan (CERP). This large scale CERP restoration project is planned to restore many thousands of acres of coastal wetlands and the near-shore adjacent portions of Biscayne Bay.  With the exception of what has already been restored at the Deering Estate, the most northerly component of this large project is the 130 acre restoration parcel purchased by the Water Management District just to the south of the 22 acre forest.  This makes the forest and its protection an effort worthy of local, county, state, national, and international significance.

This precious 22 acre forest if preserved will support and enhance BBCW and the Village of Parks far into the future.

Swamp bay trees that are proof of the connection of this forest to fresh water wetlands.

About last night (Mon. 10/15/2018) - I continue to work for you to reduce development. The council votes best tell the story.

Being Mayor means putting politics aside. It means taking the political criticism for standing up on behalf of our fellow Palmetto Bay residents and our environment as I did Monday, Oct 15!

I do what I always do, fight for our residents, irrespective of the political fallout.  I voted to reduce development. That is responsibility.  My responsibility to you.

It is important to me that we save the 22 acres of the threatened Pine Rocklands from development.

Karyn Cunningham now takes ownership of the 485. Her votes confirm it. This is significant as the Vice Mayor and Karyn Cunningham fell one vote short of undoing this alleged "485" at a special council meeting set for Saturday morning July 3, 2017, yes, the fourth of July holiday. Now they have flipped and voted to keep 485. Her campaign depends upon preserving this number. Karyn Cunningham is putting politics over our environment.

She is ignoring her responsibilities to you and is playing the "oh so tired" political games. She voted AGAINST an opportunity to scale back the development at the Palmetto Bay Village Center. She voted to keep development at the "needless 485" that she keeps criticizing. Once again, my opponent has no plan other than to criticize.

Last night, the Council held a vote on the Palmetto Bay Village Center. We had the opportunity to reduce development. This was the time for a united council to tell developers that we expect cooperation and reduction. Instead, my opponent and her ally voted against a clarifying ordinance that defines the rights of the development at the Palmetto Bay Village Center, reducing it from their political catchphrase of 485 down to 389. You can view the meeting video by CLICKING HERE.

There has never been and never will be 485- based upon the traffic chokeholds that we placed in the ordinance we passed 3-2 in 2016.  We are in some serious negotiations, and those negotiations are delicate. The negotiations require that politics be put aside and we speak in a unified voice.

So far these negotiations are playing out as expected at the Monday hearing as the PBVC owners:

• Objected to this ordinance, also alleging the timing is premature.
• Threatened to not deed over the 22 acres (actually 40 acres) unless they get their way.

Strong leadership stands up to threats.  We countered with the fact that the PBVC loses all of their rights of the 2016 ordinance if they walk away, reverting back to the 2008 rights. The owners of the PBVC don't want this.

We can also compare the plans, Council Member David Singer's Current legislation as opposed to the only plan pursued by our Vice Mayor and Councilwoman Cunningham (heard at the special council hearing set by the Vice Mayor on Saturday, July 3, 2017 )

Our position is strong under my leadership, but it would be even stronger if Karyn would put her politics aside and work with me as a team. Each council member has one vote, and each vote is equally important. She didn't vote the right way because she wanted to twist what happened to suit her lie that she is anti-development and I am pro. But regardless here are some of the early concessions I achieved Monday night:

• The owners admitted that the final number will not be "485" and in fact offered up a compromise number of 450 - 470. I contend that this is their starting point in these negotiations and the unit numbers will drop further. 
• The representative for the PBVC mentioned that negotiations are ongoing for 200 -- half of the units -- to be Senior housing units. That's a HUGE offer in regard to traffic reduction.

The Village Manager and our Village Attorney will now enter into negotiations that should result in a significant reduction of the overall impact of this property AND obtaining endangered Pine Rocklands.

None of the above would have happened if Councilman Singer had not brought this ordinance forward. None of this will happen, or our final results will be reduced if we don't stand together.

Being mayor is a special responsibility that I take very seriously. I have to continue to work hard and represent the best interest of the Village. Contrast this with a candidate who undermines the negotiations for her own political gain.

It is unfortunate that Karyn Cunningham is playing politics, on these very important issues, putting her political career ahead of our village. 

As your Mayor, I have worked hard to deliver on commitments while others simply make promises. I choose to remain focused in delivering quality service to our community and remaining true to my commitment to running a clean, positive issue focused campaign which points out my accomplishments to date, along with presenting a solid positive vision for the future.

Your, Mayor,

Eugene Flinn

Palmetto Bay Village Center litigation - PCA AFFIRMED in favor of Village of Palmetto Bay

Breaking News- the Circuit Court of the 11th Judicial Circuit, sitting in its Appellate Capacity, AFFIRMS Palmetto Bay Village Council in the Palmetto Bay Village Center action

Congratulations to our Village Attorney Dexter Lehtinen for a significant victory for Palmetto Bay before the 11th Judicial Circuit (acting in its appellate capacity) in the appellate case, Case No.: 16-210 AP, Bette April Burch v. Village of Palmetto Bay, FL, et al.

This is vindication.  The Court has confirmed that Palmetto Bay has acted appropriately and well within the law in the decisions relating to the Palmetto Bay Village Center.

The 11th Judicial Circuit (acting in its appellate capacity) released its opinion in a simple one page order - no rendered opinion, in what is known as a "PCA Affirmed" Order.

This is good news for the Village and establishes Attorney Lehtinen's reputation as a outstanding legal advocate for the Village of Palmetto Bay.  Palmetto Bay has been represented by Dexter W. Lehtinen and Claudio Riedi of Lehtinen Schultz Riedi Catalano de la Fuente, PLLC.

CLICK HERE to view a Florida Legal Blog article - Florida Appellate Procedure Blog, Florida Appeals 101: What is a PCA?