LUXCOM update – Palmetto Bay filed a strong response, objecting to LUXCOM’s last-minute motion to allow the filing of an Amended Petition. 2 depositions of experts are set for Dec 5 & 6.

The parties are making final preparations for the December 18-20 Final Hearing set in this case.  First  the small bites, the deposition updates:

• 12/05/2019, 09:30 AM, the deposition, of Michele C. Mellgren, Petitioner’s Expert Witness, is set to be taken by attorneys for Palmetto Bay.
• 12/06/2019, 10:00 AM, the deposition of Mark Alvarez is set to be taken by the attorney for Petitioner, LUXCOM.

Now the big issue.  Palmetto Bay filed a Response in Opposition to Petitioner Motion for Leave to Serve Amended Petition(CLICK HERE to view online). 

For background, CLICK HERE, to view the PRIOR RELATED POST of November 25, 2019, LUXCOM filed a last-minute motion to allow the filing of an Amended Petition (total 647 pages).  

As I stated in that post, LUXCOM's right to file this amended petition is far from automatic. The judge has to approve this motion, to allow the filing of this amended petition. The Judge may DENY this motion and force LUXCOM to try this case on December 18th based solely upon the original petition.

The amended petition is based upon an expert hired by Luxcom, identified as Michele C. Mellgren, AICP, identified as a professional urban planner and the principal of The Mellgren Planning Group, Inc. You can review her report, identified as ‘Exhibit "Q-1”’ located on Page 564 of 647.

Palmetto Bay has objected, correctly pointing out the the court numerous issues as t why this proposed amendment is untimely and prejudicial to Palmetto Bay. I strongly recommend that time is taken to read this response in full. Palmetto Bay’s attorneys argue that this Amendment should be rejected by the judge for many good reasons:

First, the Amendment at this late stage is untimely. Palmetto Bay’s attorneys argue that the Petitioner should have known the alleged shortcomings of the Plan Amendment when filing its original Petition. 

Prejudice to Palmetto Bay. It is argued in the Response that any permission to allow amendment to the proceedings, after conclusion of written discovery, would be prejudicial to Palmetto Bay. 

Palmetto Bay’s attorneys argue that Petitioner’s Amendment “…should not be permitted to delay the final hearing, as any exigency is caused entirely by Petitioner’s strategic decision to spring the Expert Report and Amended Petition less than four weeks prior to final hearing.” (emphasis added).

Finally, as stated by Attorneys for Palmetto Bay:

The Expert Report is a sort of Trojan Horse, by which numerous new issues or new nuances of argument are to be introduced into the proceedings, without clear and concise statement of which portion of the Amended Petition governs the proceedings

IMPACT: one of two things will happen. First (and most likely) – the motion to amend will be DENIED by the court and the case will proceed to trial solely upon the original Petition filed August 28, 2019, due to the untimeliness of this last-minute Amendment, or (and much less likely, but possible), the motion will be granted, but a continuance will be required to prevent prejudice to Palmetto Bay.

Happy Thanksgiving 2019

Like millions of others across this great country, we will celebrate Thanksgiving, honoring a tradition older than the nation itself. The Continental Congress proclaimed that the "inhabitants of these states" observe a day of Thanksgiving back in 1782.  Ever since then we set this day aside to give thanks for all our blessings, and this year we have many things for which to be thankful.

Please also take the time to remember the less fortunate.  Many families and children are doing with less, Take the time to become involved in a local charity, with time, if not a donation. There are many ongoing charities that are looking for donations and volunteers.

There is much to be grateful for this Thanksgiving. Alexandra, Katherine, Meredith and I wish you and your family the happiest of holidays.  

Thanksgiving is the busiest traveling season of the year.  Please be aware and be safe. 




Famous Quote:
On Thanksgiving Day all over America, families sit down to dinner at the same moment - halftime.
– (author unknown)

Wednesday is known as one of the busiest days to travel of the year - therefore, in honor of travel day, I present a scene from a personal favorite Thanksgiving Movie: Planes, Trains & Automobiles. Safe travels. Happy Thanksgiving.

A scene from one of my favorite movies - Planes, Trains and Automobiles. Steve Martin and John Candy. This is an underrated movie.



The movie turned at 5:24 of this excerpt. 5:48 - and yes, he is the real article. What you see is what you get. 

Have a safe and Happy Thanksgiving.

Excerpt - document separated from the 647 page Amended Petition - "Q-1" - the report prepared by the expert hired by Luxcom, Michele C. Mellgren, AICP

In response to many requests, I created an except from the 647 pages of Amended Petition down to just the report which is contained in pages 565 - 586 of the Amended Petition.  This document is identified as "Q-1" - the report prepared by the expert hired by Luxcom, Michele C. Mellgren, AICP, identified as a professional urban planner and the principal of The Mellgren Planning Group, Inc. 

CLICK HERE to download and review exhibit "Q-1" (22 pages).

The motion for leave to amend was filed Monday, November 25, 2019. 

Also note: Ms. Mellgren's deposition is currently scheduled for December 5, 2019. This is NOT a public event.

LUXCOM filed a last-minute motion to allow the filing of an Amended Petition (total 647 pages)

Now it gets really interesting - and not necessarily in a good way.  I am still taking a deep dive in this filing, but I want to put this new fact out there for others to review and be aware of as it impacts this important issue.

Luxcom filed a last-minute motion to allow the filing of an Amended Petition (total 647 pages), filed at 3:14 PM, on Monday, November 25, 2019. (CLICK HERE) to view this DOAH filing. I refer to this filing as ‘last-minute’ as the final hearing is set for December 18 through 20, 2019, beginning at 9:00 a.m. We are a mere 3 weeks and two days prior to the expected start date of this Final Hearing.

The motion for leave to amend was filed Monday, November 25, 2019. The motion is only six (6) pages long, but the amended petition itself is 641 pages with exhibits for a total of 647 pages (including amended petition and exhibits). 

LUXCOM's right to file this amended petition is far from automatic. The judge has to approve this motion, to allow the filing of this amended petition. The Judge may DENY this motion and force LUXCOM to try this case on December 18th based solely upon the original petition.

The amended petition is based upon an expert hired by Luxcom, identified as Michele C. Mellgren, AICP, identified as a professional urban planner and the principal of The Mellgren Planning Group, Inc. You can review her report, identified as ‘Exhibit "Q-1”’ located on Page 564 of 647

Luxcom seeks leave to file and serve the attached Amended Petition which is the same as the original Petition except with respect to the addition of Section - "VI.B" which asserts the grounds and arguments relating to the Plan Amendment's non-compliance as set forth and explained in detail in the report of Luxom's expert - Michele Mellgren a copy of which report is directly incorporated into the Amended Petition and attached thereto as Exhibit "Q-1.”

Michele C. Mellgren, AICP, is a professional urban planner and the principal of The Mellgren Planning Group, Inc., which is a planning, zoning and land use consulting firm located in South Florida. Ms. Mellgren holds a Master’s Degree in Urban and Regional Planning from The George Washington University in Washington, D.C.; is certified by the American Institute of Certified Planners; and, has more than 30 years of experience in planning, zoning and land use issues. She has also qualified in both Federal and Circuit Courts as an expert in planning, zoning and land use matters. 

Through legal counsel for Yacht Club by Luxcom, LLC (Luxcom), Ms. Mellgren was retained to analyze the land use plan amendment (LUPA) initiated and adopted by the Village of Palmetto Bay, FL for the former Florida Power & Light Company (FPL) site presently owned by Luxcom. The purpose of this study is to analyze whether the LUPA is “in compliance” as the term is defined in Sec. 163.3184 F.S., which includes the regulatory requirements in Sec. 163.3177 F.S.

(The two paragraphs quoted above was taken verbatim from page 568 of 647).

There will be more to come at a later date. For now, we all can read up on this case.

LUXCOM files its response – responding as to phone v video testimony and meekly challenging the witness as well as the location of the hearing.

Obviously the LUXCOM lawyers fear the 'home field advantage' - This is a hearing before a neutral Judge, not a sporting event where the crowd pumps up the home team. Location for me has always been about transportation (love riding the Metrorail to the courthouse) and/or easy parking and access for me to meet and consult with the clients and witnesses who will be participating in the proceedings.

CLICK HERE to download (from the actual DOAH docket online) the PETITIONER’S RESPONSE TO RESPONDENT’S MOTION FOR TELEPHONIC APPEARANCE filed by LUXCOM.

This is an update to a PRIOR RELATED POST of Monday, November 18, 2019, LUXCOM litigation update: PALMETTO BAY, filed a Motion for Telephonic Appearance of Expert Witness Mohammed Khan who has relocated out of the Country.

The main points of LUXCOM's argument are:

First, Petitioner objects to phone testimony since it would not allow Petitioner, its counsel and the trier of fact in these proceedings - the Administrative Law Judge - to visually observe Mr. Kahn and his demeanor while testifying.  LUXCOM lawyers argue that everyone participating in the proceedings should have the ability to visually observe this witness and his demeanor. 

This was not unexpected and was discussed in the prior related post of Monday, 11/18.

Secondly, and somewhat awkward, this response serves as a backdoor renewal of the objection to the location of the hearing:
“On a final note, Petitioner previously objected to the current location of the final hearing – Respondent’s own facilities in the Village of Palmetto Bay.” LUXCOM ’renewed’ its objection, alleging that the Palmetto Bay Village Hall “… is anything but a neutral location and it should be moved to the Department Of Administrative Hearing’s video teleconferencing site in Miami which is clearly a neutral and fair location to both sides.” 

Again, I have never personally believed in the ‘home field’ advantage insofar as location of proceedings. There will be no fan advantage and I am sure that the LUXCOM attorneys will be able to maintain their concentration in the face of the hordes of Palmetto Bay home town spectators that they fear.  (So I ask my fellow Palmetto Bay residents to please leave your cowbells and foam fingers at home if you attend the December hearing live.)

On a serious note, there is a crack in the door on revisiting the location of hearing. The real issue is the ability to properly set up teleconferencing. The location of the hearing will turn on whether Palmetto Bay can properly accommodate video teleconferencing.

IMPACT: Expect video testimony and a change in location of the hearing if Palmetto Bay cannot properly accommodate video conferencing for Mr. Khan to testify from India.  I expect that Palmetto Bay will be able to accommodate video conferencing. 

CONTINUING SPECIAL NOTE: Palmetto Bay officials continue to neglect to update the “litigation page” online to include any information relating to this action (or other recent actions) on the official village website (at least as of  2:00 PM, Monday, 11/25/2019). Posting would be for courtesy, as it is not required, but would aid in transparency. As pointed out previously, many of the documents from the prior administrations have been removed from public access online, casting shade on transparency as well as accessibility of these public records.

After all, if DOAH can post these (and many other) documents online, why can’t Palmetto Bay? Don't buy the "ADA" argument. DOAH/the Courts are under the same ADA requirements as any other government entity. There is no lack of ability for Palmetto Bay elected leaders, only a lack of will to make the records accessible.

Litigation Update. Court approves agreement between Palmetto Bay & Miami-Dade County to stay proceedings pending exhaustion of conflict resolution procedures

A short bite update in the case for injunctive relief against Miami-Dade County. Or as this post should be called "why simply send a certified letter to initiate an inter-governmental conflict resolution proceeding when you can direct the Village Attorney to file a lawsuit, so that lawsuit can be placed on hold while the parties engage in an inter-governmental conflict resolution proceeding?" Sound convoluted? Yes, the entire reasons for the following legal action are as convoluted as the statement above. This is but another lesson in how to blow through a legal budget and waste taxpayer money.

Note that as of November 20, 2019, the following has been accomplished (or not) in the case of VILLAGE OF PALMETTO BAY, FLORIDA VS MIAMI-DADE COUNTY, case number 019-031036-CA-01, case filed 10/18/2019:
1. There is no injunction, or even request for a temporary injunction while the case proceeds.
2. The parties agreed to stay this case (as required by Florida Law) while the parties pursue conflict resolution procedures pursuant to Chapter 164, Florida Statutes.

The agreed order was rendered by the Judge on November 18, 2019. This agreed step is actually required under Florida Law. Section 164.0141, Florida Statutes, which places a duty to negotiate and provides under subsection (1) that "If a governmental entity files suit against another governmental entity, court proceedings on the suit shall be abated, by order of the court, until the procedural options of this act have been exhausted."  CLICK HERE to review the complete CHAPTER 164, GOVERNMENTAL DISPUTES

Waste of time and money. In reality, no lawsuit was ever needed to get to this phase. The lawsuit has only served to create needless antagonisms between Miami-Dade County and the current elected officials of the Village of Palmetto Bay. Why do I say this? Because this conflict assessment phase did not require a lawsuit (which was filed October 18 – a month ago) and an agreed order. Per subsection 164.1053, the parties could have completed this conflict resolution phase and either resolved the issue or now had grounds to file the lawsuit. This subsection provides that:

(1) After the initiation of the conflict resolution procedure, and after proper notice by certified letter has been given, a conflict assessment meeting shall occur. The meeting shall be scheduled to occur within 30 days of the receipt of the letter initiating the conflict resolution procedure. Public notice shall be given for this meeting in accordance with s. 164.1031(7).

Palmetto Bay failed to follow the proper protocol. Where a certified letter would suffice, the Village Council took the political gamesmanship approach by instead ordering the Village Attorney to immediately file suit - that has simply sat from October 18 until the agreed order of November 18. This has only delayed the process and antagonized the County.

By the way, when can we, the people, expect to be provided with public notice shall be given for this conflict resolution meeting in accordance with s. 164.1031(7)?

IMPACT: Legal representatives of Palmetto Bay & Miami-Dade County have agreed to talk through participating in a legally required conflict resolution proceeding. A proceeding that could have commenced anytime after 10 days of serving a simple certified letter.

Is there an urgent issue affecting public safety or not? There are inconsistencies in the litigation, the stated purpose of the lawsuit. What is intriguing here is that the Village Council stated that there was an immediate need to the suit for injunctive relief for public safety purposes, yet there has been no pursuit of a temporary injunction pending the remainder of the case and the parties are now engaging in the mediation. The actions of the Palmetto Bay Council conflict sharply as this procedure is not required where:

(If) a governmental entity, by a three-fourths vote of its governing body, finds that an immediate danger to the health, safety, or welfare of the public requires immediate action, or that significant legal rights will be compromised if a court proceeding does not take place before the provisions of this act are complied with, no notice or public meeting or other proceeding as provided by this act shall be required before such a court proceeding. 

See subsection (2).

For background, see a PRIOR RELATED POST of October 25, 2019, Thoughts on the most recent litigation FILED by the village: Good faith or is this a less than good faith attempt to avoid a deal that the Mayor and Council had no authority to make?

As I have stated, The recent lawsuit for injunctive relief is a very big deal. This is diplomacy through litigation, giving up on communication turning the entire matter over to the court where all parties are divested of certain decision making authority. The best thing that can happen is that Miami-Dade County obtains a binding agreement from the current Palmetto Bay Council which will actually bind the council to keep their negotiated agreements.

Fellow residents need to be sure that this council does not enter into any binding agreement that is not in our best interest (and that will vary based upon how each person's interest is affected).

I make the statement above as the continued buzz around the village is whether the current Mayor and council overstepped their authority in reaching a formal agreement with Miami-Dade County, through the Department of Transportation and Public Works (DTPW) without bringing the proposal back to the residents. It is a fair question as others have wondered whether this lawsuit is an abject 'abdication of responsibility' of the responsibility of their elected office as spelled out in the Village Charter for Mayor Cunningham and the entire Village Council to maintain civility, communication and advocate for Palmetto Bay with Miami-Dade County.

Commuter surprise - Miami-Dade County Installed a 4-way stop on 87th Avenue at 144th Street

Love it or hate it, but the County installed a four-way stop on 87th Avenue at the intersection of 144th Street. The new 4-way stop signage went up during the morning to mid-day hours of Tuesday, November 19, 2019. It is good news that Miami-Dade County has stepped in to address this intersection.

This is a dangerous intersection. It is nearly impossible to cross or turn at this intersection safely. 

PRO: It will make it easier and safer to turn left or cross 144, but ...
CON: it is a four way stop, rather than a circle. This mean drivers can run these signs and T-bone other vehicles. 

NOTE: The free standing center stop sign is temporary - placed there to educate and provide additional visibility that there are new stop signs until drivers get used to the fact that the signs are there. You can also expect painted stop markers (the broad white stripe) to be added in the near future. 

BACKGROUND: There was once a traffic circle slated for this corner, budgeted for the 2018-2019 budget year. 3 of the current members of the village council voted for the budget that included the proposed traffic circle. This new (current) council VOTED DOWN this traffic circle in 2019.  I am told that the Village Council voted 5-0 in favor of the 4-way stop at a recent meeting (I am working to verify). 

SPECIAL NOTE - the index to resolutions only lists resolutions that were APPROVED. You won't find a resolution that failed - those are not posted - thereby limiting the record. 

Reliving history. Does anyone recall the Mangowood 4-way stop issue at SW 82nd Ave at 148? This led to resolutions and numerous town hall meetings - and a WLRN Article - "Is It Possible To Have Too Many Stop Signs? Depends On The Alternatives, Palmetto Bay Residents Say" by Kate Stein, September 28, 2016 - for full background, please review a relevant prior post, from September 30, 2016, WLRN covers traffic town hall - Tuesday, September 27, 2016 - significant background is provided in the related prior posts.

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

I have been fielding questions on whether my recent litigation updates relating to Palmetto Bay Court cases represent all of the litigation Palmetto Bay is significantly involved in. The answer is no, there are many other cases. Some are foreclosure or other similar actions where Palmetto Bay is a named party, but does not significantly participate in the litigation. There is at least one personal injury case filed against the Village, which is being defended through Defense counsel provided by the Village insurance carrier.  But the answer is yes, there are other significant Palmetto Bay cases being litigated that may be unknown to you.  I will update on several in some upcoming posts (but not consecutive posts as there are other topics to cover).

Palmetto Bay is currently embroiled in an Appeal pending before the Third District Court of Appeal. This appeal is of a dismissal of Circuit Court Case No.: 2019-011663-CA-31 (Order rendered 7/01/2019) that dismissed the complaint filed by LUXCOM.

The basis of the dismissal was stated in the final order of dismissal in that the Plaintiff, LUXCOM, has other remedies, that LUXCOM is "...fully able to raise and assert all of the claims asserted in this Complaint, after final agency action, through a Petition for Writ of Certiorari on a zoning map amendment, or through a Petition to the Division of Administrative Hearings on a comprehensive plan amendment."

LUXCOM filed its Petition with DOAH on August 28, 2019, DOAH Case No.: 19-004612GM. See PRIOR RELATED BLOG POST of Thursday, August 29, 2019, Petition filed against the Village of Palmetto Bay by Yacht Club By Luxcom – seeking an administrative review of the rezoning of the properly commonly referred to as the “FPL Cutler Plant” property. Link to 616 page petition provided. The Petition to the Division of Administrative Hearings has been discussed throughout this blog and PRIOR RELATED BLOG POSTS can be located through clicking the “DOAH” label (12 prior posts on this subject).

There is an online docket for the Third District Court of Appeal, as well as the Miami-Dade Circuit Court and DOAH - (just not one for Palmetto Bay). The Third District case number is 3D19-1495, styled as YACHT CLUB BY LUXCOM, LLC vs. VILLAGE OF PALMETTO BAY, FLORIDA.

There is not much to report on at the present time that relates to this appeal. The appeal was filed and paid. The record has been prepared and the parties agreed to an extension of time for the Appellant, LUXCOM, to file its initial brief – the date for filing appears to be December 8, 2019.

I would expect the next report on this litigation (APPEAL) will be December 9, 2019.

READING IT HERE - BECAUSE PALMETTO BAY REFUSES TO UPDATE THE "LITIGATION PAGE"-  SPECIAL NOTE: Palmetto Bay officials continue to neglect to update the “litigation page” online to include any information relating to this action (or other recent actions) on the official village website. Posting would be for courtesy, as it is not required, but would aid in transparency. As pointed out previously, many of the documents from the prior administrations have been removed from public access online, casting shade on transparency as well as accessibility of these public records.

After all, if DOAH can post these (and many other) documents online, why can’t Palmetto Bay? Don't buy the "ADA" argument. DOAH/the Courts are under the same ADA requirements as any other government entity. There is no lack of ability for Palmetto Bay elected leaders, only a lack of will to make the records accessible.

Eugene Flinn

LUXCOM litigation update: PALMETTO BAY, filed a Motion for Telephonic Appearance of Expert Witness Mohammed Khan who has relocated out of the Country.

Just a short update relating to the DOAH litigation: Defendant, PALMETTO BAY, filed a Motion for Telephonic Appearance of Expert Witness Mohammed Khan who has relocated to India.  (CLICK HERE) to view this motion posted online on the DOAH docket for this case.

Mohammed Khan is a traffic engineer that prepared the traffic concurrency analysis for the comprehensive plan amendment. His was reviewed by the Village Council in conjunction with the consideration and adoption of the comprehensive plan amendment that is the subject of this proceeding. 

IMPACT: Attorneys for Palmetto Bay have requested that Mr. Khan be permitted to appear telephonically at the final hearing in this matter, as well as any deposition requested by the Petitioner. Telephone appearances are often granted for good cause. This witness is certainly unavailable locally. This certainly appears to be good cause, even absent any assertion that Mohammed Khan has no plans to be in the State or even the United States at any time relevant to the ongoing proceedings. 

The motion fails to document any communication between the completing attorneys to try to work out or narrow the issues. 

WHAT TO EXPECT: I would expect this motion to be GRANTED and that LUXCOM’s only alternative would be to pay for travel and lodging related toMr. Khan attending proceedings locally (this witness would not be personally compelled to do so) OR LUXCOM could counter move with the Court or reach an agreement with Palmetto Bay to schedule any depositions or hearing testimony to take place via teleconferencing, Mr. Khan appearing live at an agreed to location in India (the most likely alternative).

CONTINUING SPECIAL NOTE: Palmetto Bay officials continue to neglect to update the “litigation page” online to include any information relating to this action (or other recent actions) on the official village website (at least as of  8:00 AM, Monday, 11/18/2019). Posting would be for courtesy, as it is not required, but would aid in transparency. As pointed out previously, many of the documents from the prior administrations have been removed from public access online, casting shade on transparency as well as accessibility of these public records.

After all, if DOAH can post these (and many other) documents online, why can’t Palmetto Bay? Don't buy the "ADA" argument. DOAH/the Courts are under the same ADA requirements as any other government entity. There is no lack of ability for Palmetto Bay elected leaders, only a lack of will to make the records accessible.


Eugene Flinn

Palmetto Bay "Shared Path" update - presentation for Pinecrest - no info for affected Palmetto Bay residents

Palmetto Bay: the clock is running, time is getting tight. Pinecrest Officials had yet another presentation on the design and status of the SW 136th Street at their Village Council meeting of November 12, 2019.

It appears that Miami-Dade County Officials are working to complete the (single Palmetto Bay side) shared path plans by February 14, 2020 - Valentine's Day - and, at least as of the date of this blog post, Palmetto Bay officials have not scheduled a single town hall meeting to update affected Palmetto Bay residents, to seek their input.  A February 14, 2020, design completion date does not provide much time for Palmetto Bay to get notice to affected residents. Working together on a shared plan is much, much easier than changing a plan developed in your absence.  

I have been posting about this issue - raising issues since January of this year. 2019 is about to come to a close and there has been nothing, zip, zilch, nada, set for our residents to have their input on this critical infrastructure. The entirety of 2019 has gone by for our residents without input or update.

 or 

I am still waiting to see how this MEGA sidewalk, which I am told will consist of 10 feet of sidewalk in some ares, down to 8 feet in others, will impact those who live on the Palmetto Bay side of 136th Street, and the effect on the student drop off in front of Howard Drive Elementary.  We need answers. Why the silence?

THE INFORMATION TOOL BOX - PRIOR RELATED POSTS.

Here is where you can find information relating to this issue:

Friday, November 8, 2019:
Time is past due for a Public Meeting to engage and update residents regarding the SW 136th Street Project

Wednesday, October 30, 2019:

Pinecrest Wins, Palmetto Bay loses. Pinecrest Council discusses material changes to 136 St Bike Lane. Palmetto Bay may be home to a 10 foot MEGA sidewalk instead of a shared project.

Tuesday, October 29, 2019:

Foreshadowing - for now, please review the Palmetto Bay Path conceptual Plan proposed by Marsha Matson, Palmetto Bay Councilmember, District 3, March 18, 2019.

January 13, 2019, 
Taking a close look. A ten foot multi-use path proposed for around Palmetto Bay by a member of the Village Council - here is how it might look. Actual photos of a similar, if not identical design. Offering some Pros & Cons

Update on LUXCOM litigation v. Palmetto Bay. Five (5) filings prior to noon, Tuesday, November 12, 2019. A very busy day so far.

Tuesday, November 12, 2019, has been a very busy day (as of 10:30 AM) for filings in the DOAH administrative action.  Five (5) filings before noon. Note - the filings were actually made on a Federal Holiday, Veterans Day, so the recorded, effective, date is November 12, 2019.

The following have been filed on the DOAH online docket at time of release of this blog update:

1. Respondents' Notice of Service of Answers to Interrogatories filed. *
2. Respondents' Notice of Service of Answers to Expert Interrogatories filed.* 
3. Response to First Request for Production of Documents filed.*
4. Village of Palmetto Bay's Response to Petitioner's Expert Witness Request for Production of Documents filed.*
5. Village of Palmetto Bay's Witness List filed.*
   
   CLICK separately on each document listed above to view it on the DOAH docket.

*(note - all documents were e-filed as of 8:00 AM, 11/11, a designated court holiday, so filing date is listed per Rule is as next day, 11/12/2019)

The Palmetto Bay Witness List: The Village listed and therefore reserves the right to call any of the witnesses listed on this list, "... and will further narrow the number of witnesses to be called as discovery is ongoing.":

• Mark Alvarez, Palmetto Bay Interim Planning and Zoning Director
• Mohammed Khan, Marlin Engineering
• Ed Silva, Village Manager
  
• Ray Eubanks, Plan Processing Administrator, Department of Economic Opportunity, Bureau of Comprehensive Planning
• Shereen Yee Fong, Transportation Planner IV, Department of Transportation, District Six
• Isabel Cosio Carballo, Executive Director, South Florida Regional Planning Council
• Terry Manning, AICP, Policy and Planning Analyst, Water Supply Coordination Unit, South Florida Water Management District
• Jerry Bell, AICP, Assistant Director for Planning, Miami-Dade County, Regulatory and Economic Resources
• Maria Valdes, Miami-Dade Water and Sewer Department (WASD), Chief, Comprehensive Planning & Water Supply Certification
• Christine Velazquez, Division of Environmental Resource Management (DERM)
• Wilbur Mayorga, P.E., Chief, Environmental Monitoring and Restoration Division

NEXT UP - It appears that discovery may move from production of documents and sworn to written answers to actual live depositions.

IMPACT: The law firm of LEHTINEN SCHULTZ RIEDI de la FUENTE, Attorneys for Palmetto Bay, appear to be loaded for bear. I like our chances in this DOAH action in December, 2019. It is a shame this firm has been excluded as continuing as Village Attorneys on General matters. I am not privy to the actual documents, the sworn answers or documents. More updates will follow as more information comes to light. The Final Hearing currently remains on schedule for December 18 through 20, 2019; beginning at 9:00 a.m., at Palmetto Bay Village Hall.

PRIOR POSTS RELATED to LUXCOM discovery:

See: September 26, 2019, Palmetto Bay responds with itshard-hitting discovery requests served upon the Petitioner LUXCOM. Update on Administrative action filed by Petitioner, YACHT CLUB BY LUXCOM, LLC. Two discovery demands filed Thursday, September 26, 2019. Read the details.

   and

October 1, 2019, Update on Administrative action filed by Petitioner, YACHT CLUB BY LUXCOM, LLC., Four (4) discovery demands filed Tuesday, 10/1. Read the details.

CLICK HERE to view PRIOR POSTS related to LUXCOM.

CONTINUING SPECIAL NOTE: Palmetto Bay officials continue to neglect to update the “litigation page” online to include any information relating to this action (or other recent actions) on the official village website (at least as of  11:00 AM, Tuesday, 11/12/2019). Posting would be for courtesy, as it is not required, but would aid in transparency. As pointed out previously, many of the documents from the prior administrations have been removed from public access online, casting shade on transparency as well as accessibility of these public records.

After all, if DOAH can post these (and many other) documents online, why can’t Palmetto Bay? Don't buy the "ADA" argument. DOAH/the Courts are under the same ADA requirements as any other government entity. There is no lack of ability for Palmetto Bay elected leaders, only a lack of will to make the records accessible.

Eugene Flinn

Veterans Day 2019 - Thank you to those (and their families) who serve our country.

Thank you to those who answered the call to serve.

I would like to take this opportunity to recognize and thank all US Military veterans for their service to our country. Today, Monday, Nov 11, 2019, everyone should take a moment to honor those who have preserved our freedom and protected all of our rights, including the right to vote. Veterans Day is a holiday honoring living military veterans. It is a Federal and State holiday observed by all states.

HISTORY: President Woodrow Wilson first proclaimed Armistice Day on November 11, 1919. Other countries today also still recognize November 11th as Armistice Day or Remembrance Day in honor of the Armistice treaty which ended WWI. The U.S Congress amended this act on November 8, 1954, making this holiday Veterans Day as we know it today.

HOW TO HONOR: Military dot com list ways that you can celebrate and educate your children about Veterans Day:  http://www.military.com/veterans-day/celebrate-veterans-day.html

History dot com offers a wealth of information about Veteran’s Day:  http://www.history.com/topics/holidays/veterans-day-facts

Please see a prior post: Recognizing Purple Heart Awardees:  August 12, 2016, Recognizing our Purple Heart Awardees. Palmetto Bay is now a Purple Heart City!  This special day was made even more special in Palmetto Bay as we became a recognized "Purple Heart City" -

Brief Discovery Update on LUXCOM litigation v. Palmetto Bay. LUXCOM served discovery responses and objections on Friday, 11/08/2019. Status of case.

Petitioner, LUXCOM, filed its response and objections to Respondent’s, PALMETTO BAY, First Request For Production to Petitioner dated September 26, 2019 on Friday, 11/08/2019. CLICK HERE to view the complete 25 page document.

Also filed that same day, Friday, 11/08/2019, at 4:36 PM, was Petitioner, LUXCOM's, Notice of serving its Answers to the Respondent’s, VILLAGE OF PALMETTO BAY, First Set of Interrogatories propounded September 26, 2019. [CLICK HERE to view the Notice (no attached answers)]

Note that both were filed later than 30 days from service. There were no motions to compel discovery responses filed, so the only assumption is that either a short extension was negotiated between the attorneys or filed under threat of a motion to compel.

NEXT UP - The Village of Palmetto Bay will either accept the responses and objections or will see redress with the Judge to overrule the objections, compelling LUXCOM to make full discovery.  The Village responses to the discovery requests of LUXCOM filed 10/1/2019 are now due as well, absent an agreement to extend time (note that any response will likely include, both responses and objections similar to those raised by LUXCOM).

IMPACT: Unknown at this time as I am not privy to the actual documents, the sworn answers or documents. More updates will follow as more information comes to light. The Final Hearing currently remains on schedule for December 18 through 20, 2019; beginning at 9:00 a.m., at Palmetto Bay Village Hall.

PRIOR POSTS RELATED to LUXCOM discovery:

See: September 26, 2019, Palmetto Bay responds with itshard-hitting discovery requests served upon the Petitioner LUXCOM. Update on Administrative action filed by Petitioner, YACHT CLUB BY LUXCOM, LLC. Two discovery demands filed Thursday, September 26, 2019. Read the details.

   and

October 1, 2019, Update on Administrative action filed by Petitioner, YACHT CLUB BY LUXCOM, LLC., Four (4) discovery demands filed Tuesday, 10/1. Read the details.

CLICK HERE to view PRIOR POSTS related to LUXCOM.

CONTINUING SPECIAL NOTE: Palmetto Bay officials continue to neglect to update the “litigation page” online to include any information relating to this action (or other recent actions) on the official village website (at least as of  10:00 AM, Monday, 11/11/2019). Posting would be for courtesy, as it is not required, but would aid in transparency. As pointed out previously, many of the documents from the prior administrations have been removed from public access online, casting shade on transparency as well as accessibility of these public records.

After all, if DOAH can post these (and many other) documents online, why can’t Palmetto Bay? Don't buy the "ADA" argument. DOAH/the Courts are under the same ADA requirements as any other government entity. There is no lack of ability for Palmetto Bay elected leaders, only a lack of will to make the records accessible.

Eugene Flinn

Time is past due for a Public Meeting to engage and update residents regarding the SW 136th Street Project

Transparency and public involvement matters to those Elected Officials who want their fellow residents to trust their government. Residents should be able to expect transparency from their elected officials.

The time is long past due for our elected officials to update and involve our fellow Palmetto Bay residents on the Howard Drive "bike lane" project.  As background, please review  a PRIOR RELATED POST of January 25, 2017: Update on the 136 improvement meeting held at Howard Drive Elementary & Temporary Traffic Tables coming to Farmers Road during County Pilot Program. Significant information was provided then and an update is long overdue, especially as the wheels appear to have come off the tracks for this project.  Transparency counts.

People who feared loss of trees for a simple bike lane will now face a much greater impact from a 10 foot 'multi-use path' (a/k/a a MEGA sidewalk) in front of their homes (OK, I understand that the MEGA sidewalk may be reduced a 'mere' 8 feet in some sections). Regardless, there will be much less room to park without violating the ADA by parking on a sidewalk. There will be significantly less room for trees. 

I am waiting to see how this MEGA sidewalk impacts the 136th Street student drop off in front of Howard Drive Elementary.  We need answers.

What happened to this project?  Other important questions include: 

• Did any of our village council members work to change out the agreed to bike lanes to a 10 foot MEGA path placed solely on the Palmetto Bay side? And, if so, why wasn't the public updated. 
• Or were they caught unaware? 
• Why weren't our residents consulted in advance of this major change, did our representatives not know, or do their voices not matter? 
• Is the MEGA path a 'done deal' or can our residents still have input? 
• Which residents were provided inside knowledge and if so, why were other concerned residents neither not invited to meetings or at least provided a timely update?

And still, the current Palmetto Bay Mayor and other officials still remain unaware, or unwilling, to update the facts of the project as the Village Website continues to incorrectly mislead the readers that the "136th St. Improvement Project remains as follows:

136th St. Improvement Project

This project is currently under design. Improvements include minor widening of the roadway to add bike lanes on both sides of the road and milling & resurfacing the existing roadway. We are looking to replace the existing 5’ sidewalk on the South side of SW 136TH Street (Village of Palmetto Bay Side) with a new 7’ wide sidewalk. Other improvements will include pavement markings, ADA Compliant pedestrian ramps, and landscape improvements. This is a LAP Project between Miami Dade County and FDOT, and Village of Pinecrest and Village of Palmetto Bay are also stakeholders.
(this is how the web notice reads as of 3:00 PM, Friday, Nov. 8, 2019)

CLICK HERE if you want to see if the website has been altered as a result of this blog post.

Screen shot taken 2:35 PM, 11-8-2019

Do you want to see what a 10 foot MEGA Multi-Path looks like? Please see a PRIOR RELATED POST of January 13, 2019, Taking a close look. A ten foot multi-use path proposed for around Palmetto Bay by a member of the Village Council - here is how it might look. Actual photos of a similar, if not identical design. Offering some Pros & Cons

Will this be the new look for the Palmetto Bay side of Howard Drive?

 Other PRIOR RELATED POSTS of interest - part of your tool box of information relating to this process:

October 30, 2019, Pinecrest Wins, Palmetto Bay loses. Pinecrest Council discusses material changes to 136 St Bike Lane. Palmetto Bay may be home to a 10 foot MEGA sidewalk instead of a shared project.

EDITOR'S NOTE - There was no update on this project was provided (at least to the public) at the Palmetto Bay regular village council meeting of November 4, 2019. Why not?

October 29, 2019, Foreshadowing - for now, please review the Palmetto Bay Path conceptual Plan proposed by Marsha Matson, Palmetto Bay Councilmember, District 3, March 18, 2019.

I will place any updates here when the long-overdue public input session is set and noticed. This blog has a way to nudge Palmetto Bay into action.

Eugene Flinn

Update on MDFR Station 62 - Public celebration of opening is 10:00 AM, Sat., Nov. 9 - more public works infrastructure coming to area!

What are you doing this Saturday, November 9? The Grand Opening Ceremony for Palmetto Bay's new MDFR Station 62 will be this Saturday, November 9th at 10 am. The public is invited to attend and celebrate the opening of MDFR Station 62. Come one, come all.  There will be music and demonstrations/exhibits put on by Miami-Dade Fire.

BENEFITS TO THE COMMUNITY:

• LIFE SAFETY.  The station brings our County Fire Responders into our community in an area previously identified as having a need for increased service (Check and done!)
• COUNTY WATER. The MDFR graciously agreed to bring county water to the immediate neighborhood (SW 142nd) as part of this station 62 construction. Not just to the station, but station plus neighborhood (Check and done!), and ...
• TRAFFIC SIGNAL FOR THE 142 / OLD CUTLER ROAD INTERSECTION - see below:

TRAFFIC SIGNAL FOR THE 142 / OLD CUTLER ROAD INTERSECTION:
I was advised that Miami-Dade County Public Works (DTPW) has approved a traffic signal for the intersection of SW 142 and Old Cutler Road. MDFR vehicles will have preemption of the signal as it will aid/allow easy of left turns in and out of Station 62. I am told that this traffic signal should be of benefit to the residents of SW 142 in turning left in and out of their street as well.  This traffic signal was just approved very recently. It will needs to go through design and installation.  Patience.

Circle marks where the 142/OCR traffic signal will be placed.

TIME FRAME FOR SIGNAL:  I am told that the signal will be a project that will take from 6 months to a year for realization.

STATION 62: Station 62 has been a long time project, but patience (and persistence) pays.  CLICK HERE to view some prior related posts on Fire Safety in Palmetto Bay.  I'd love to sit down and tell all on this history of the efforts undertaken by Palmetto Bay with its partner, Miami-Dade County. Many, many people have been involved. Many will look back and be thankful for their hard work.

Remember, we still have the Southeast station to go.  We are part way there, but we need to get this station revitalized as well. 

I have been privileged to serve as Mayor of Palmetto Bay for much of the time that this Station has been in the works. It is my pleasure to see it delivered and operational for our South Miami-Dade Community.  

EUGENE FLINN

Photo credit: Miami-Dade County

Reports of removal of invasive species - in this case Iguanas. How should it be done? Link to a video and the FWC guidelines on removing the invasive iguana

Another in my opinion series. What are your thoughts? The reason I raise this issue relates to sudden reports here in Palmetto Bay residents who have witnessed various animals being caught, killed and removed here in Palmetto Bay. Are any Village Officials monitoring this? Is Village leadership even aware of these 'hunts' and, if so, what is the plan? Or is this one of those 'fail to see, fail to act' situations?

I have embedded a video that the photographer asserts to be of people on the canal killing iguanas. The videographer acknowledges that Iguanas are considered to be a nuisance, but thinks they should be killed humanely, and questions if the method in the video is humane. These guys are snagging the iguanas with a snare, and then shooting them with a pellet gun.  In this video, you can see at least 3 shots to one iguana.  I doubt it is dead at this point. 

The allegation is that these hunters are being paid $50 per iguana from the gated community to the south of the videographer.  (I am withholding the location of the HOA at least at this time).

The Videographer has issues imagining this would be considered humane. Don't get me wrong, these Iguanas are invasive. They are damaging our native areas. The issue is proper methods, humane methods and using licensed removers. Are they? I don't know. That is why I am putting this out there to stimulate debate and awareness.  As stated by FWC Commissioner Rodney Barreto: "...(They - FWC) are asking the public to just go out there and shoot them up. This is not what we are about; this is not the ‘wild west.’ If you are not capable of safely removing iguanas from your property, please seek assistance from professionals who do this for a living..."

What is your opinion of this method of Iguana removal?



Note – It is legal to kill Iguanas - Property owners are free to humanely kill the iguanas, or trap them and bring them in to a veterinarian or humane society for euthanasia. It is illegal to poison the creatures. Iguanas, like all nonnative, invasive species, are not protected in Florida except by anti-cruelty law.

CLICK HERE to view the official FWC site relating to the Invasive Green Iguana (Iguana iguana)  Information below taken verbatim from the FWC Website:

Frequently Asked Questions Can I remove iguanas from my property? Green iguanas are not protected in Florida except by anti-cruelty laws and can be humanely killed on private property year-round with landowner permission. The FWC encourages removal of green iguanas from private properties by landowners. Members of the public may also remove and kill iguanas from 22 FWC managed public lands without a license or permit under Executive Order 17-11. Captured iguanas cannot be relocated and released at other locations in Florida. Homeowners that trap iguanas on their property may be able to obtain euthanasia services from local exotic veterinarians, humane societies or animal control offices depending on the location and availability of services. If you are not capable of safely removing iguanas from your property, please seek assistance from a professional nuisance wildlife trapper.

CLICK HERE to view prior related posts of Invasive Species in our community. This is my 30th post relating to invasive species.

HOWEVER! Read the FWC statement (CLICK HERE):

Green iguanas are an invasive species in Florida and are not native to our state. They can cause considerable damage to infrastructure, including seawalls and sidewalks. Iguanas, like all nonnative, invasive species, are not protected in Florida except by anti-cruelty law. While they cannot be relocated, they can be removed from private property with landowner permission.

“Unfortunately, the message has been conveyed that we are asking the public to just go out there and shoot them up. This is not what we are about; this is not the ‘wild west.’ If you are not capable of safely removing iguanas from your property, please seek assistance from professionals who do this for a living,” said FWC Commissioner Rodney Barreto.