“… (Palmetto Bay elected officials) failed to
follow the essential requirements of the law, rendered a decision wholly
unsupported by competent substantial evidence and subjected Petitioner to
reverse spot zoning that resulted in a confiscatory taking of its real
property.”
This is not an order that
makes Village residents proud. It is a very strong indictment of a poorly run hearing.
Or, in my opinion, so ruled the three judge panel of the Appellate Division of
the Eleventh Judicial Circuit on September 10, 2024, in the case of FAIRCHILD
BAY SUBDIVISION LLC VS VILLAGE OF PALMETTO BAY, 2023-000033-AP-01
The ruling of the Court was accepted by the village officials without contest when they decided not to
contest it by filing a motion for rehearing or clarification. The mandate has been issued (pictured right). This is good for
the taxpayers, but bad for the village’s reputation. Perhaps village legal
council advised the mayor and council that they had no chance and to finally
quit wasting taxpayer dollars on useless litigation. The Village taxpayers should
thank whoever convinced this council to accept the ruling of the court, drop
the foolishness and, most importantly, not waste more time and village tax
dollars in this matter. This matter will come back before the Village Council for a redo - consistent with the Order.
WHAT WAS AT ISSUE?: The issue for the zoning hearing
was simple – the Property is designated as “low density residential” on the
Village comp plan. The property is currently zoned agricultural. This property
is located at 9000 SW 174 Street – firmly ensconced on a low density
residential area. It is a small
property, too small for the agricultural designation and, in fact, this
property is NOT an active agricultural use – it is currently a single home, one
of the last pieces of property that once made up a vibrant mango grove (this
ended long before Palmetto Bay was even an idea). This was not an application for high density
apartments. To the contrary – the applicant sought to built homes at one
dwelling (single family home) per 15,000 net feet of land (same as surrounding
homes).
I had posted about this
recent order back on September 11, 2024 – See PRIOR RELATED POST - Fully unfavorable decision rendered against the Village of Palmetto Bay by the court in FAIRCHILD BAY SUBDIVISION LLC VS VILLAGE OF PALMETTO BAY, 2023-000033-AP-01. As
I stated then, This decision hurts. You can’t spin it, though I am sure they
will try. I was wrong. Even the village team of spin doctors did not want to
try and touch this one. Instead they hope you don’t notice.
The order is now final. So
what is the damage? Here are the
findings of the court that are now accepted:
The most
outrageous statement comes from Mayor Cunningham – this opinion singles her out
for opposing the rezoning because there is “nothing really that requires
us to change the zoning.” (top of page 5 of the opinion) Wrong! This statement
was featured as part of how the court determined that she, as part of the
entire council, failed to follow the essential requirements of law. (The
mayor and council also failed to follow the Staff recommendation as well as the
recommendations of the Village Attorney). Yes, despite that fact that she has
been on the counsel since 2015, she has yet to figure out the Code or her
responsibilities of actually following the Code or the law. Some may say, don’t
blame her, she’s not an attorney. But
two members of the Village Council do have law degrees, and even though neither
practice law, both also were also outed by the court for failing to follow the
Village Code as well as the essential requirements of law. Further, these two council
members failed the community by not engaging any legal common sense and by not
directing the mayor to focus on the facts of the application and to properly
apply the Village Code and the Law. This is part of a never ending pattern of
ignoring the law – see December 13, 2023, Court slaps down Palmetto
Bay's zoning appeal -- more units for Old Cutler Road
The Court was strong in
the language. See page 11-12 of the Fairchild order, where the court discussed how wrong
she/they is/are on their failure to follow the law. The Court reviewed Palmetto
Bay’s Code of Ordinances (which the mayor had significant input on crafting) –
section 30-30.7 in this case where the Process and Criteria for review are
enumerated. The court noted how none – NONE – of the council members [including
the mayor – questioned the applicant on any of the enumerated criteria (bottom
of page 13 of the order)], but instead focused on irrelevant issues. The court determined that the mayor and
council – they all - failed to follow the essential requirements of law.
The Village really cannot recover
from this opinion (along with the beat down received in the Palmetto Bay
Village Center cases). But the voters
can replace two of the offending council members next month and bring fresh
perspective along with people who will properly follow the Village’s Codes and
Law.
As detailed
on page 17 of the order, the judges determined that they were “constrained
to find that the Council unjustifiably applied their own unenumerated criteria
in denying (the applicant’s} rezoning application, In so doing, the Council
Also disregarded the Village’s Comprehensive Plan ….” [legalese for the
court finding that the Mayor and Council made up their own rules that were inconsistent
(contrary to) the law].
Accordingly,
the Village failed to follow the essential requirements of law. (page 17 of
the order, bold emphasis added)
The Village Officials
are accepting their failures while hoping that no one will notice. (Obviously because it is not election time).
Take notice
voters! Zoning is an essential function of the Village Council. Their continued
failures cost you in higher taxes and bad zoning decisions.