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

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

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

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

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

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

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

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

Remedies – the $21,760,000.00 question.

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

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

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

Another aspect of the act is encouragement for the parties to resolve claims by using alternative remedies (sounds a lot like the 12/12/2019 dispute resolution event, that did not go well for Palmetto Bay – see: January 7, 2020, South Dade Updates Guest Blog- view of the 12/12/2019Palmetto Bay / Miami-Dade County conflict resolution proceeding (let’s hope the Village has learned from this 12/12/2019 debacle and will be better prepared for this round involving a potential $21,700,000.00 plus Bert J. Harris claim – we are talking serious money here, not stop signs)

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

Big Issues with remedies

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

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

The “Toolbox” (resource materials):

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

RELIEF FROM BURDENS ON REAL PROPERTY RIGHTS

CHAPTER 70

RELIEF FROM BURDENS ON REAL PROPERTY RIGHTS

70.001   Private property rights protection.

70.002  Property Owner Bill of Rights.

70.20 Balancing of interests.

70.45 Governmental exactions.

70.51  Land use and environmental dispute resolution.

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

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

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

Real Breaking News – 2:29 PM, Monday, January 13, 2020 - LUXCOM voluntarily dismisses the DOAH administrative action; gives notice of BERT J HARRIS claim potentially seeking over $21 million. Details including link to relevant documents.

Perhaps LUXCOM would rather face the current Village Attorney on a Bert J Harris claim than litigate against Dexter Lehtinen, Esq, before the ALJ later this month.

The dismissal simply states that LUXCOM has 

...opted to assert its legal rights against the Village, pursuant to the Bert J. Harris, Jr., Private Property Rights Protection Act as set forth in Fla. Stat. Sec 70.001 ...

As part of this document, LUXCOM served the Village of Palmetto Bay with the pre-suit claim and supporting appraisal pursuant to Section 70.001(4)(a) of the Bert Harris Act.

CLICK HERE to download and view the entire 63 page document (2 pages voluntarily dismissal)

There is a document (beginning page 6) entitled "AN APPRAISAL OF THE FORMER FPL CUTLER POWER PLANT SITE LOCATED AT THE NORTHEAST CORNER OF SW 67TH AVENUE AND SW 152ND AVENUE"(Hereafter simply "Appraisal")

LUXCOM appears to be alleging $21,760,000 in damages under Bert J Harris. The important allegation is contained in the Appraisal (Page two of appraisal, overall page eight of 63) that the Bert J Harris damages are projected at $21,760,000 – an excerpt follows:

Based upon the scope of the assignment, our investigation and analysis of the information contained within this report, as well as our general knowledge of real estate valuation procedures and market conditions, it is our opinion that the Retrospective Market Value of the Fee Simple Estate of the Subject Property, as an institutional use, as of July 29, 2019 was:

$34,000,000

It is also our opinion that the Retrospective Market Value of the Fee Simple Estate of the Subject Property, considering the land and zoning use to Estate Density Residential, as of July 30, 2019 was:

$12,240,000

Based on these two valuations, it is our opinion that the damages claim for the “Bert J. Harris, Jr., Private Property Rights Protection Act”, as of July 30, 2019 was:

$21,760,000

I need more time to review, so updates will follow. I want to get this information out for public discussion. This is an interesting development. We will see the reaction from the Village.  I look forward to a strong and spirited defense.

Failed negotiations lead to the probability of yet another lawsuit filed against Palmetto Bay. Next in a series.

 Here we go again. More litigation. 

The answer was known to the mayor and council prior to 10:00 AM today (Thursday, 9/10/2020), but there was no communication to us, the villager residents, until after I posted my 3:00 PM blog update. To the best of my knowledge, this information was not made public until an email was released at 5:17 PM.

The full story is as follows (CLICK HERE to view the complete LUXCOM communication):

LUXCOM attorneys advised Palmetto Bay's add-on, outside counsel, that it is their opinion "... that the Village did not negotiate in good faith at the Mediation regarding the number of units. "As mediation is confidential, (The attorney)... is unable to say more." (and it is their opinion, and we, the residents, are not privy to significant facts).

The email may at one time been considered a privileged communication, but it was released and is now public record.

The results of the failed meeting last night are as follows (and again, as detailed in the e-mail):

• LUXCOM terminates the mediation process.
• The Village was instructed to respond to the Bert J Harris demand no later than Friday, September 18 - no further extensions will be granted.
• A formal Bert J Harris action "(and any other appropriate causes of action will be filed shortly thereafter.
• "Further more, all pending litigation and the Petition for Writ will now be moved forward expeditiously."

IMPACT: This matter moves on to the courts. More angst, much more cost and expense and much less control over the result. There will be a significant budget impact on several fronts, including the actual need to properly adjust (uplift) the litigation budget as well as possible impact to the Palmetto Bay Bond rating - which may adversely impact the cost to taxpayers of any village debt. 

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

I did note that the meeting of Wednesday, September 9, 2020, was very disappointing. 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). 

This has certainly dragged on. The original deadline date was Thursday, June 11, 2020. As stated, it appears that the final deadline date is now Friday, September 18, 2020.

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

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

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

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

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

The word is that negotiations have been ongoing; that the Village of Palmetto Bay has made the following offers to LUXCOM (note that it appears there is nothing in writing):

• 145 units (which is significantly more than the 1 unit per acre limitation imposed by Palmetto Bay - promised to residents by this mayor and council)
• Revert the zoning back to "institutional" but specifically excluding a use for a hospital, or
• Participate in binding arbitration.

My first question is what authority does the Village Attorney have to make these offers? Is there an agreement between the mayor and village council members? There were no executive sessions - these are held outside of public view, but transcripts are recorded and those are released to the public after the litigation ends. Are the offers made in a "If we, would you?" sense, requiring approval by the village council after a public hearing? Or as alleged through an anonymous source; were the council members polled?  Polling would be troubling as that is a question in the abstract and removes the public and public hearing from the ongoing zoning issue.

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

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

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

Fair questions:

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

This is a lead in to some small bite articles detailing this important LUXCOM issue. Watch this space for update articles.

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

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

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

• They purchased a property known to be contaminated. A known health risk not just to the site, but to surrounding areas.
• Due to the contamination, there is a valid argument for ZERO units per acre.
• The majority of the site had only been used for power plant production, not residential (and is also the reason for the contamination).
• The area to the north is in a differing jurisdiction, Coral Gables - which has its own zoning / land use codes, rules & regulations; what I considered to be a 'hard wall' against liberally applying any trend of development into Palmetto Bay.
• The area and few houses (caretaker houses) were zoned 5 unit and 1 unit per acre in the applicable close proximity. This would support reasonable zoning decisions of between 15 - 65 units on this entire property.
• Hearings were held on the legislation establishing the 1 unit per acre designation.
• (There are many more reasons not included here)

LUXCOM is significant. This may be the first time ever that a Palmetto Bay mayor and council upzone any property, increasing density. This property has important distinctions from the Palmetto Bay Village Center (PBVC). First of all, back in the 1980s, the PBVC won a court-order right (against Miami-Dade) to over 1,400 residential units on the 80 acres long before Palmetto Bay residents ever though of becoming a municipality. Palmetto Bay officials have worked hard to whittle down the number of units over time. LUXCOM is an attempt to actually INCREASE the number of units.

The tool box:

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

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

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

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

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

Opinion: Are we really getting to the end result of the development of the Palmetto Bay Village Center? Performative politics and the violation of Bert J Harris results in the MEGA PBVC.

The FACTS regarding the Palmetto Bay Village Center.

How did Palmetto Bay get to the point where it is offering up so much new density on the 80 acre property? Well, in the past, Palmetto Bay residents and officials worked hard to find a palatable solution (see prior posts relating to the Burger King World Headquarters Charrette and the over 42 meetings).  But while some labored in good faith, other political opportunists saw the potential of his property as a political football -- and assumed that voters were too stupid to realize that the property owner had some rights and would be able to build something.  Unfortunately, they threw rocks, promised to "stop the development" but never - ever - came up with a plan to stop it.  Instead, their lack of vision. lack of leadership and most of all - their lack of knowledge as to when to stop digging resulted in this current MEGA plan never contemplated under the 2008, 2016, or any other plan considered previously.  The Palmetto Bay Village Center (PBVC) matter came off the rails on January 24, 2022 when the mayor at the time (the present mayor) and the council adopted Village Resolution No. 2022-05.  This was the resolution from which the courts determined that the Village (current Mayor) VIOLATED the property rights of the owners of the PBVC. And please, when reading, note the specifics as to what the owners of the PBVC sought in that application - 480 units (and I have documented how it should have been many fewer) , no hotel, no additional commercial over what is presently proposed for approval (code named the MEGA enchilada)!

Current council rock throwing over working to present their own plan!

The current plan is a settlement - not a zoning hearing - a settlement of a significant Bert J Harris claim that APPROVES much more development over the rights of the residents not because any prior officials took any action, but because the current mayor dug the holes that we, the residents, find ourselves in because she never took any appropriate action to work with the owners to formulate anything palatable - more on that later - but the village is about to see the unfortunate results when officials are elected who could only throw rocks at the efforts and plans of those who stood up to the issue. The current group never never attempt anything meaningful.  Of course, we now see that the current mayor can throw rocks at the ground - and still miss!

More on Bert J Harris - See my prior related post of 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. 

What Could Have Been

The PBVC issue predates the incorporation of Palmetto Bay.  I was in negotiation prior to December 5, 2018.  At that time, the owners of Palmetto Bay Village Center had agreed to preserve the environmentally sensitive land at the front of the property and construct a number that would have been not "the 485,"but rather, a representative for the PBVC offered a compromise number of 450 - 470. I contend that this was their starting point in these negotiations and the unit numbers would have dropped lower (Again, it is important to note that the Bert J Harris Claim arose out of the property rights violations created by the mayor and council in place for Resolution No. 2022-05).  The representative for the PBVC also mentioned in 2018 that negotiations had been ongoing for 200 -- half of the units -- to be Senior housing units. That's a HUGE offer in regard to traffic reduction.

More prior relevant reads: Tuesday, October 16, 2018, About last night (Mon. 10/15/2018) - I continue to work for you to reduce development. The council votes best tell the story.

What Now?

Now, after years of expensive litigation, rock throwing and scapegoating, the Palmetto Bay Village Council appears ready to cave and give the owners of the Palmetto Bay Village Center the APPROVAL to construct a much larger MEGA project -- with commercial never anticipated, in addition to the absolute maximum number of residential units. The Village's refusal to negotiate (because, presumably, they wanted to be seen as taking a tough stance against development) has led to massive increases in development - not prior action.

Yes, it is clear that none of those rocks thrown at the ground (or the PBVC) ever hit the mark. Just cheap political grandstanding covering up a lack of understanding of the issues that will profoundly impact our community.

Just please Palmetto Bay officials - take some positive action - and admit your foibles - and what ever you do, avoid going to court!

Development by unsupportable political denials rarely works for election officials -and area residents suffer. As noted in prior opinion posts, Things have not gone well for the Village of Palmetto Bay before the Miami-Dade trial and Appellate Division of the 11th Circuit Court - and the Third District Court of Appeal.  They promised "no development" but their litigation stumbles more aptly reflects "hold my beer" on granting massive development rights.

Read up on the Appellate Division ruling against Palmetto Bay in a strongly worded 31 page opinion that reversed the denial of the PBVC zoning decision.

Palmetto Bay officials sought a rehearing of the opinion, but fared no better in a revised, but just as lengthy 31 page opinion released July 5, 2023.

See: my prior related opinion post of December 13, 2023 - Court slaps down Palmetto Bay's zoning appeal -- more units for Old Cutler Road DENIED.  The Third District Court of Appeals ruled against the Village of Palmetto Bay.  Having lost - badly - in the efforts on appeal (review via Petitions for Cert for those who want to be sticklers for technicalities) - the Village had no bargaining power left. Read the order cited in that post - "hold my beer" id far too kind. 

This development did not materialize overnight - it took a massive amount of misdirected passive aggressive inaction from January 2019 to date to reach this point. 

Simply stated - don't blame the VUM or any amending ordinances. Blame the council for violating Bert J Harris - and that is a very tough thing to do!. They dug this deep hole and this MEGA development is the result stems from performative politics and lack of vision. The plan is a settlement of transgressions of those who let the village down when Resolution No. 2022-05 was enacted.

LUXCOM and the Bert J Harris claim against Palmetto Bay: Is the planning letter of November 30, 2018, a "$21 million dollar letter"?

Is this a $21 million dollar letter? Luxcom appears to believe so.

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

This letter begins:

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

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

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

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

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

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

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

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

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

CLICK HERE to read this letter for yourself

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

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

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

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

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

Specifically, the property owners allege that:

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

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

Stay tuned and we shall see what develops.

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

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'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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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).

The Village of Palmetto Bay retained the firm of Calvin, Giordano & Associates (CGA) to review the development potential and determine a “Trend of Development” on approximately 69 acres of the overall 81.91-acre site which was the former site of the Cutler FPL power plant owned by FP&L.

This firm of (CGA) is part of a list of pre-approved qualified firms eligible to provided engineering and transportation planning services to Palmetto Bay (Palmetto Bay Resolution 2013-40, approved 5/6/2013, as well as resolution 2014-34, approved 4/7/2014). 

The goal of the Trend of Development analysis is to provide clarity regarding which uses predominate in order to create land use and development patterns on the site that are compatible with the surrounding area.

CLICK HERE to view the actual trend of development report (14 pages including site photos) 

This is a document which provides some historical background of this property - Interesting reading for those who, like me, enjoy reading historical background. See section 3 Site History, beginning page 3 (pages 3 & 4 of this 14 page document).

3. Site History
The site subject to the Trend of Development study was settled by William C. Cutler in the 1910’s and was used as a plantation estate for many years.

On September 15, 1947, the Dade County Board of County Commissioners (BOCC), via Resolution 2615, approved a request for a special permit to develop the site as a power plant facility.

On February 27, 1951, the Dade County BOCC, via Resolution 4177, approved a request for a special permit to allow the installation of an additional 75,000 kilowatt generating unit.

On June 24, 1952, the Dade County BOCC, via Resolution 5099, approved a request for a special permit to allow a recreation and meeting room for employees and their families and headquarters meeting room and lounge for plant visitors.

On March 24, 1953, the Dade County BOCC, via Resolution 5779, approved a request for a special permit to allow the installation of an additional 75,000 kilowatt generating unit.

On December 29, 1953, the Dade County BOCC, via Resolution 6582, approved an expansion of the uses at the location.

On December 18, 1963, the Dade County BOCC, via Resolution 2-ZAB-683-63, approved a permit to allow the expansion of the existing plant by the addition of two 425,000 kilowatt generating units and all accessory equipment and facilities.

On July 12, 1994, the Dade County BOCC, via Resolution 5-ZAB-248-94, approved a request for a special use permit to allow the installation of a monopole cell tower.

In November 2012, the property ceased its power generation activities and the power generating plant was demolished by FP&L on August 10, 2013. The site now only serves as a substation for the distribution of power produced at FP&L’s Turkey Point Facility.

On May 6, 2014, the Miami-Dade County BOCC issued Resolution No. R-439-14 determining that the Cutler Ridge Electric Power Generating Plant site was no longer in use, nor would it be used in the future, for an electrical generating facility of county-wide significance. Through this determination, and via the above referenced resolution, the County relinquished its prior regulatory authority over the site to the Village of Palmetto Bay.

Without the power generating plant, FP&L no longer needs to retain all 82 acres of the site.
FP&L’s plat application, filed on November 13, 2014, sought to separate approximately 13.4 acres from the site which they intend to retain for the purpose of operating the existing power distribution substation.

Page 9 & 10 - 4.e Surrounding Uses

Different sections of the site are bound by:

a) residential development of varying styles and densities to the north, southeast and southwest;

b) the northern edge of the Deering Estate North Addition Preserve to the south;

c) school facilities to the west; and

d) water channels connecting to the Cutler Channel and Biscayne Bay.

The surrounding residential uses include:

• To the north, King’s Bay Subdivision, an established 68-acre gated subdivision located within the boundaries of the City of Coral Gables. This subdivision contains 150 dwelling units (du’s) at an average density of 2.5 du/acre.This neighborhood was annexed into the City of Coral Gables in 2003. Single-loaded homes lining the southern edge of the subdivision back onto the FP&L site.

• To the southwest, Royal Palm Estates, a subdivision of approximately 22 lots within the Village of Palmetto Bay, that is surrounded on three sides by the properties that constitute the Miami Dade County-owned Deering Estate. Some of the estates are large, but the average density in this subdivision is approximately 2.5 du/acre.

• To the southeast, Paradise Point, a gated subdivision within the Village of Palmetto Bay, consisting of 12 single family homes, approximately 100 townhouses, and amenities including a marina. The average density in this neighborhood is 9 du/acre.

BLOG EDITOR'S NOTE: NO CONCLUSION - YET.  No conclusion is provided here as there is not one to make at the present time. This information is being provided due to the fact that Palmetto Bay is not putting out this important information. Everyone should read the entirety of information provided to understand this issue. To better understand this information is to be better prepared to defend the Village Council's actions in court. 

The Village's position will be much more difficult to defend if it is cast as a political decision in response to political pressure rather than a decision based upon a deliberate process that properly take all past, present and future concerns into account, relying upon these professional tools.

The defensible data is out there. It is up to the Village Council to provide responsible and competent leadership, allowing staff and village council to do its job without political interference.