New litigation against Palmetto Bay. What now? Waiting for the relevant documents to go public.

 A lawsuit was fled by resident Alan Farquharson against the Village of Palmetto Bay. This suit was filed on Wednesday, September 10, 2025.  I am posting the docket to date.  The case has been assigned case number 2025-017648-CA-01 and has been assigned to Circuit Judge Mavel Ruiz.

I am waiting to see the specifics.  The public docket to date merely lists "Other Civil Complaint" as case type.  It also appears that Mr. Farquharson has filed this case pro se, acting as his own attorney (at least for now).

The filings should be posted online for public view sometime Thursday, September 11, 2025.

My opinion: Cunningham violated the law of Holes - All of Palmetto Bay will pay the price. PBVC has all the cards. To be known in Palmetto Bay history as the Cunningham 575-605 unit plan.

Mayor Cunningham - stop casting stones at me and prior counsel members for our affirmative actions in regarding the Palmetto Bay Village Center (PBVC). We took action.

This includes former Mayor Stanczyk as she participated in and voted for the 2008 VMU district as well as championing the proposal to build an additional 40 units and a fire station in the environmentally sensitive 22 acres back in 2014. 

It is your inept handling of the Palmetto Bay Village Center that has led to a MEGA project no one wanted; that we could not have even feared in our worst dreams. Your failure to address these issues, which includes simply following the law in 2022 has actually put Palmetto Bay at risk of 2,385 residential units.

None of this was ever talked about in the open - at no time did you engage residents to work with the developer through an updated Charrette process or town hall meetings.

You do no not even want to take responsibility for preserving the 22 acres - instead you are willing to allow the developer to sell off this land to the County Environmentally Endangered Land Program (EEL) - which at least we were able to get the 22 acres listed on the B list for purchase by the County while I was mayor (which you had nothing to do with - long before you ever showed any interest in Palmetto Bay).

The facts as to how deep the hole reached are spelled out in a 3 page letter of June 20, 2025. from attorneys for the PBVC - I suggest that the residents review this letter as in my opinion it seriously contradicts the propaganda that has been disseminated under your watch.

Again, your record is one of passive avoidance - simply taking a populist no-vote when staff has recommended otherwise and you have set this Village up for the multiple failures before the Courts. My advice to the current Mayor, Council Members back in December 2023: ‘when in a hole (and mayor, you are deep in this hole) STOP DIGGING!’ See the Law of Holes.

From Wikipedia:

When it is said, "if you find yourself in a hole, stop digging," it is because digging a hole makes it deeper and therefore harder to get out of. More generally, the adage advises how one should solve problems of their own making.

The second law of holes is commonly known as: "when you stop digging, you are still in a hole."

But you just had to keep being a populist, blaming others and milking that political football.  You had to keep digging.

RESULTS - The PBVC could have been limited to anywhere from 389 to 420, 450 if the 2022 zoning hearings and decision been handled with even slight skill - and a commitment to following the law. That its - application closed.  Now Palmetto Bay is facing an initial 450, then a max of 480 without any further council input (interference?), significant commercial including a 125 unit hotel (bringing the actual total number of "units" to between 575-605).

I'd say "great job" but the sarcasm would be lost. At least - and this is a slight 'win' - the PBVC has stepped up to protect the 22 acres where the Village refused.  They, not the village will partner with the County EEL program and receive millions for it - money that the village taxpayers would have been entitled to see go to the village had Palmetto Bay stepped forward. 

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.

Update of Fairchild development / litigation. The loss in court in now complete – Village officials cave – and without argument – enter into an agreed final judgment in favor of the developer.

Palmetto Bay officials have surrendered and did not contest judgment against the village in the case of FAIRCHILD BAY SUBDIVISION LLC VS VILLAGE OF PALMETTO BAY, 2023-016828-CA-01. CLICK HERE to view the Order entered on December 5, 2024. 

I expected a Fairchild victory. The Order notes that “…in light of the recently entered opinion by this Court’s appellate division, quashing the Village’s rezoning denial at issue in this case. The Court has reviewed the Motions at a virtual hearing held on December 3, 2024…” but what is surprising is that “… the entry of this Final Judgment is unopposed.” (emphasis added)

When did Village Officials make the decision to accept judgment against the Village? No one knows. We will all have to wait until any shade session transcripts are released before the public finds out.

Village Officials have not released statements about this profound development.

Details are important. This judgment requires Palmetto Bay to take the following action:

PALMETTO BAY will adopt an Ordinance, approving the proposed rezoning of the Property from Agricultural (“AG”) to Estate Modified (“EM”).

PALMETTO BAY is directed, in accordance with applicable law, to properly advertise a rezoning and bring before the Village Council for final decision in the matter of rezoning the Property from Agricultural (“AG”) to Estate Modified (“EM”) by February, 2025.

PALMETTO BAY shall effect the rezoning of the Property from Agricultural (“AG”) to Estate Modified (“EM”).

HOWEVER, and one slight good point for village taxpayers, each side shall each bear their own attorneys’ fees and costs. (Taxpayers will "only" be responsible for the attorneys fees and costs paid to the list of lawyers who represented Palmetto Bay).

We will also now wait for the February zoning hearing to hear about the details.

THE BACKSTORY - PRIOR RELATED POSTS:

See November 19, 2024, Now armed with a strong appellate decision in their favor, is the stage set for victory by Fairchild Subdivision applicant against Palmetto Bay?

September 11, 2024. 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

Appellate Court rules against Residents and Palmetto Bay in the bridge appeal.

The action of Miami-Dade County regarding the 87th Avenue bridge has been affirmed on appeal. 

The decision was released this morning deciding the appeal of Village of Palmetto Bay, Florida, et al. v. Miami-Dade County, Florida, 3rd DCA Case no.: 2024-0230.  This was a 14 page decision.  In conclusion, the panel ruled that:

... the County was and is the ultimate decider as to the necessity of the Bridge Project. Because its actions were consistent with the applicable regulatory framework, it acted within its purview in approving the construction. We therefore find no reversible error and affirm in all respects.

CLICK HERE to view the opinion released Wednesday, December 4, 2024.

I will post an analysis later this week, but I am posting the notification and link to the opinion to enable access for any interested readers. 

Now armed with a strong appellate decision in their favor, is the stage set for victory by Fairchild Subdivision applicant against Palmetto Bay?

Are Palmetto Bay officials about to take an additional loss in regard to the Fairchild Subdivision zoning application? (CLICK HERE to view prior related articles relating to FAIRCHILD BAY SUBDIVISION LLC VS VILLAGE OF PALMETTO BAY.)

Little has been said (I think nothing has been said) by the Palmetto Bay PR machine relating to the second case pending at the Circuit Court level.  This case is also styled  FAIRCHILD BAY SUBDIVISION LLC VS VILLAGE OF PALMETTO BAY, but has been pending before a trial court under case number 2023-016828-CA-01. This case was heading to trial; the trial judge having denied cross motions for summary Judgments filed by each party back in late June, 2024.

EDITOR’S NOTE: What is a summary Judgment? : Summary judgment is a procedure used in civil lawsuits to fast track the litigation process and avoid unnecessary trials in those cases where there are no genuine disputes as to any material fact, and the moving party is entitled to judgment as a matter of law.

It appears that the Plaintiffs will be making a renewed attempt to secure a summary judgment in their favor (win) and avoid trial. This appears to be based upon the Order rendered by the Appellate Division, fully favorable to the plaintiff, slamming the Village of Palmetto Bay. 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 

The new Plaintiffs may argue that this appellate decision changes everything – and that the prior denial of their motion for Summary Judgment should be reconsidered in light of the Appellate Court ruling that Palmetto Bay 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 was a damning opinion and it was not contested by the village officials – they accepted the findings of that order without seeking a rehearing or appeal.

This hearing is presently set for December 3, 2024, at 9:30 AM. Before the Honorable Spencer Eig. Things are getting interesting once again – and interesting is not often good for the Village of Palmetto Bay.

The details (for those who like to take deeper dives):
Each side had filed their own motions for Summary Judgment in this case.  Fairchild Bay filed its motion on September 28, 2023. Palmetto Bay filed its motion for Summary Judgment on November 29, 2023.  The Trial Judge had DENIED the summary judgments filed by both Fairchild Bay and Palmetto Bay by order dated June 28, 2024.  The appellate order was released months later, on September 10, 2024.

So what has changed since those orders?

First of all, the parties have changed.  The ownership rights of the property has changes.  On February 22, 2024, the ownership of the Property was transferred from FAIRCHILD BAY SUBDIVISION LLC to Marcos R. Becari. Thereafter, on July 24, 2024, the ownership was transferred to Marcos R. Becari and Ann E.Becari as life tenants. As a result, Marcos R. Becari and Ann E. Becari have succeeded to all rights, title, and interest in the subject matter of this action.

The next big question is whether the named individuals are actually new parties or did they simply dissolve the LLC and step in individually? Also, will the new parties be more willing to work with this council or will they will take a harder line, especially armed with the recent appellate order?

We will wait and see.  The hearing is set for Tuesday, December 3 at 9:30 AM – which is Judge Eig’s standard Motion Calendar schedule.  Motions for summary judgments usually require a special set as they take longer than a simple 5 minute motion. Perhaps this is a hearing to discuss the appellate order and to discuss when to specially set the summary judgment motion for rehearing based upon the order.

About Fairchild Bay Subdivison LLC – this was a Florida Corporation that has been administrative dissolved, no longer in existence. The only officer listed was Sainz Homes, as manager and registered agent.

Mrs. Sainz, identified as the Petitioner's representative (Fairchild Bay Subdivison LLC), had testified before the Palmetto Bay Council that the Petitioner intended to subdivide the property; build two homes for the owners and have two single family homes available for sale.

I am unaware of the specifics as to the prior relationship, if any, Marcos R. Becari and Ann E. Becari, to the original applicant/Petitioner Fairchild Bay Subdivison LLC, or if this impacts the prior representation that two of the homes would be for owners or if all homes are to be developed and sold to unrelated parties.

The Fairchild Subdivision Order is now final - no motion for rehearing was timely filed. My opinion as to what it means for the Village. This order reflects poorly on the Village.

“… (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.

Ready for more litigation? And now we know the behind the scenes (aka actual) reason for the presentation, Amending Sect 30-60.32 relating to Medical Marijuana Regulations (Sponsored by Administration and Prepared by Community and Economic Development Director, Heidi Siegel, AICP)

Things have been far too quiet lately on the litigation front. The silence has been shattered by a new lawsuit filed against Palmetto Bay; filed June 10, 2024. The Plaintiff is Plants of Ruskin, LLC, a company incorporated as a Florida Limited Liability Company.  It appears to have been incorporated on August 31, 2017.  The principal address is listed as Apollo Beach, FL, 33572.  The mailing address is in Chicago IL 60610 – where the listed corporate officers also appear to reside.

So the council failed to resolve.  We now have another major lawsuit - Plants of Ruskin, LLC v. The Village of Palmetto Bay, CaseNo.:  2024-010503-CA-01, assigned to the Honorable Mavel Ruiz who will be called upon to resolve this matter. 

The Plaintiff is seeking the following:

As to Count I, Declaratory Judgment (beginning page 12 of 108), the Plaintiff is seeking the following:

... a declaratory judgment in its favor declaring that Sections 30-60.32(d) and (e)(1) of the Code are unlawful and invalid, and that they should be stricken because they violate Section 381.986(11)(b)1, Florida Statutes, by imposing specific limits the numbers of medical marijuana dispensaries that may locate within the Village, and award such other and further relief as the Court deems just and proper

.As to Count II, Injunctive Relief (beginning page 18 of 108), the Plaintiff is seeking the following:

An injunction from the court prohibiting the Village of Palmetto Bay from:

                (i).           denying the Plaintiffs Application based upon the ordinance;
                (ii).         requiring the Plaintiff to submit a “Distance Requirement Analysis” pursuant to Section 30-60.32(2) of the Village Code;
                (iii).        imposing any restrictions, duties, obligations or conditions precedent to approval of (the Plaintiff’s) Application that in any way relate to or stem from the Ordinances; and
                (iv).        awarding any other relief as (the) Court deems just and proper.

Does anyone have any information as to claims that individual council members have met with the applicant / plaintiff in private. Just once, can we please have some detailed disclosures on what occurs in these private meetings – to avoid disclosure is a serious breach of transparency in my opinion.  

State law states that the Village Council must comply with State Law if it is to allow the sale of medical marijuana – but state law allows banning the sale of medical marijuana within a municipality.

I am providing a link to the actual complaint. Note that it is a large download – 108 pages. 

I am also providing a link to the staff memorandum provided for the March 20, 2024, Committee of the Whole Meeting.  The memorandum is 52 pages.  The staff report reveals that:

At the December 18, 2023, Zoning Hearing, Village Staff presented application RZ-23-008, an ordinance amending Section 30-60.32 (Low-THC Cannabis and Medical Cannabis Dispensaries, Treatment Facilities and Independent Testing Laboratories) to be consistent with State law. The item was continued at the request of the Village Council to allow discussion at a Committee of the Whole workshop.

Staff appears to be calling out the village council for requesting that this matter be deferred – from December 18, 2023, to a COW Meeting held in March. Obviously, we see no action taken nearly six (6) months later – which appears to have led up to this lawsuit.

This is a far too common method of dispute resolution – inaction by staff and/or the mayor and village council resulting in a lawsuit. Once the lawsuit is filed, the current mayor and village council have a new entity to blame – the courts.

Please note that a transcript from the zoning hearing of Monday, December 18, 2023, is provided as an exhibit to the Complaint filed by Plants of Ruskin, LLC – yes that is right – this item was heard as part of a zoning hearing.  The transcript begins on page 22 of the complaint and ends on page 25. The transcript appears incomplete and I could not find any disclosures regarding any ex parte communication between any member of the village council with any interesting party. 

I will advise as to any information I receive. We shall see how this one plays out. This appears to be a defensible case. How will the village taxpayers make out in this new litigation?

87th Avenue Bridge Litigation - Volunteer attorneys Norman M. Waas, Esq, and Jessica M. Hernandez, Esq. filed a motion to expedite appeal.

The reality is setting in for residents on all sides of the canal. As many are aware, Miami-Dade County has started moving forward on the actual construction of the bridge as of Tuesday, May 28, 2024.  This generated mixed reaction from opposing sides – a huge sigh of relief and celebration from those who have fought for the bridge versus significant angst and anxiety from those in opposition. 

The only statement from village leaders to date was posted on Facebook:

Please be aware that the contractor has mobilized at the construction site for Miami-Dade County’s SW 87 Avenue bridge project. The Village will be working with the contractor and the County to minimize any disruption to residents in the affected area. We will also provide updates on the project as they become available. (bold emphasis added).

I haven’t seen any other statements made by or on behalf of our village counsel regarding the commencement of the bridge construction. Please feel free to notify me of what ever information you have seen or heard.

Action in the form of a motion to expedite appeal was filed Wednesday, May 29, 2024. The motion to expedite appeal was filed on behalf of the Appellants, the Palmetto Bay residents in opposition to the 87 Avenue bridge.  These residents have been represented by volunteer counsel - Norman M. Waas, Esq, and Jessica M. Hernandez, Esq, of the local law firm FALK, WAAS, SOLOMON, MENDLESTEIN & DAVIS, P.A. The village is usually represented by a Village Attorney, or one of the special counsels listed as eligible to represent the village in such matters.

The rules of appellate procedure do provide for situations where a court may expedite the appeal.  The motion was filed on May 29, 2024, arguing that:

Public interest supports the appropriateness of expedited review of this matter. It is indisputable that the bridge project will affect the lives of residents in the Village of Palmetto Bay. Those opposed to the bridge—including Appellants—are concerned that increased traffic in the neighborhoods along 87th Avenue, especially north of the bridge, will badly damage the character of the neighborhoods and pose unnecessary traffic and safety risks.

Kudos to both Norman M. Waas, Esq, and Jessica M. Hernandez, Esq. who have been carrying a huge burden without compensation on behalf of the Village of Palmetto Bay, who is listed as the first named party to this appeal. Both attorneys should be recognized for their service, regardless of anyone’s position on the bridge.

I will keep you up to date on how this matter progresses.

Other related documents:

I am providing access to the briefs filed to date.

The Initial Brief of the Appellants (E-filed April 12, 2024) (those in opposition to the bridge, filed by volunteer counsel - Norman M. Waas, Esq, and Jessica M. Hernandez, Esq

The Answer Brief of the Appellee (e-filed May 13, 2024) Filed by Miami-Dade County.

The Reply Brief of the Appellants (E-filed May 28, 2024) (those in opposition to the bridge, filed by volunteer counsel - Norman M. Waas, Esq, and Jessica M. Hernandez, Esq

Interesting - MUST - read - transcripts received relating to 2 attorney client meetings - the insider discussion of the Palmetto Bay Village Center litigation.

Why is it that information is not easily accessible in Palmetto Bay?

Palmetto Bay once had a litigation page where concerned residents were informed as to status of ongoing litigation, The transcripts were due to be released as the litigation had ended.  The case: 17777 OLD CUTLER ROAD, LLC VS VILLAGE OF PALMETTO BAY, FLORIDA ET AL, Case number: 2022-000012-AP-01, was final, litigation was at an end, upon the denial of the pending motions for rehearing by the Third District Court of Appeal on March 15, 2024.  The Mandate was issued April 4, 2024.  see my prior related blog post of December 13, 2023, Court slaps down Palmetto Bay's zoning appeal. The Opinion denying the Petition (appeal) was released December 13, 2023 (but was not final until the motions for rehearing were resolved).

I have posted two transcripts relating to the litigation involving the Palmetto Bay Village Center.  I have transcripts for April 3, 2023, and December 18, 2023.  Please click on the links to download and read for yourself.

What Could Have Been

We could have dropped the number to as low as 389 - but that takes negotiation, and the record reflects that Mayor Cunningham and her group won't negotiate.  They have delayed this issue for many years - refusing to make decisions and instead pushing this off to the courts, which conveniently provides the current mayor and the current council with  more people to blame.  Listen to them - read the transcripts - they blame everyone but themselves.  They could have successfully defended a well managed hearing with a proper denial - but look to the July 5, 2023 opinion - it details how not to manage any zoning issue, especially one so critical to our village!

The courts will not craft a compromise deal.  Its win loss - and Mayor Cunningham, and the Village lost - big! Litigation is not cheap. There is a very good reason why so many refer to litigation as the sport of kings. But hey, this is not their money.  It is ours.  

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.  An ordinance proposed and passed by then Council Member David Singer reduced the number to below 400 units. 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.

See: 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 Is Now?

Now, after years of expensive litigation, the Palmetto Bay Village Center has won the right to construct a much larger project -- with commercial units in addition to a larger 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. 

What was being contested (a lengthy tortured history):

Palmetto Bay held three different hearings to get to an inartfully crafted resolution denying the zoning application of the Palmetto Bay Village Center. These hearings were held October 18, 2021, November 15, 2021 and January 24, 2022.  The Village spent months preparing the final order (it was not rushed).  The order denying the zoning application was not signed until March 2, 2022.

The applicants (the owners of the Palmetto Bay Village Center - referred to in the litigation as 17777 Old Cutler Road, LLC.  Filed two actions on April 1, 2022 to contest the denial. :

17777 OLD CUTLER ROAD, LLC, VS VILLAGE OF PALMETTO BAY
Case number: 2022-006141-CA-01
and
17777 OLD CUTLER ROAD, LLC VS VILLAGE OF PALMETTO BAY, FLORIDA ET AL
Case number: 2022-000012-AP-01  (the case discussed in this post)

Things did not go well for the Village of Palmetto Bay before the Appellate Division of the 11th Circuit Court.  The Appellate Division ruled 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.

Feel free to download and review these two opinions.  The opinions in these appeals should be required reading to learn how to follow the law versus denial for the sake of political gain.

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) - does the Village have any bargaining power left to negotiate?  

Read the Order released Wednesday, December 13, 2023.

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.  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.

See: 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 Is Now?

Now, after years of expensive litigation, the Palmetto Bay Village Center has won the right to construct a much larger project -- with commercial units in addition to a larger 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. 

What was being contested (a lengthy tortured history):

Palmetto Bay held three different hearings to get to an inartfully crafted resolution denying the zoning application of the Palmetto Bay Village Center. These hearings were held October 18, 2021, November 15, 2021 and January 24, 2022.  The Village spent months preparing the final order (it was not rushed).  The order denying the zoning application was not signed until March 2, 2022.

The applicants (the owners of the Palmetto Bay Village Center - referred to in the litigation as 17777 Old Cutler Road, LLC.  Filed two actions on April 1, 2022 to contest the denial. :

17777 OLD CUTLER ROAD, LLC, VS VILLAGE OF PALMETTO BAY
Case number: 2022-006141-CA-01
and
17777 OLD CUTLER ROAD, LLC VS VILLAGE OF PALMETTO BAY, FLORIDA ET AL
Case number: 2022-000012-AP-01  (the case discussed in this post)

See PRIOR RELATED POSTS

Things did not go well for the Village of Palmetto Bay before the Appellate Division of the 11th Circuit Court.

The Appellate Division ruled 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.

Feel free to download and review these two opinions.  The opinions in these appeals should be required reading to learn how to follow the law versus denial for the sake of political gain.

The Palmetto Bay Village Center won rounds 2 A & B [the first level "appeal, original opinion (2 A) and rehearing (2 B)].

Palmetto Bay now was tasked with appealing. Its Petition for Writ of Certiorari was filed before the 3rd DCA contesting the Opinion of the Appellate Division of July 5, 2023, which reversed the Village Resolution 2022-05 denying the application. 

The legal grandstanding has floundered. The legal efforts have served only as an expensive waste of tax payer dollars meant more for political grandstanding than actually impacting the Palmetto Bay Village Center application.  It is time to get back to negotiation.

Why did this current mayor - and the current council - refuse to negotiate? Are they scared or simply unskilled?

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.

See: 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.

More ready about the facts, accurate history and exposing the outright lies relating the the current fix that the current mayor and counsel find themselves in (to be rescued by taxpayer dollars) -See January 27, 2020, Fact Checking the Palmetto Bay Village Center issue. Facts, not conjured up rumors and outright lies. The facts about the Palmetto Bay Village Center. Its not 485, its never been 485.

Final thoughts (a bit silly, but it makes the point):   My advice to the current Mayor, Council Members and Staff: ‘when in a hole (and mayor, you are deep in this hole) STOP DIGGING!’ See the Law of Holes.

From Wikipedia:

When it is said, "if you find yourself in a hole, stop digging," it is because digging a hole makes it deeper and therefore harder to get out of. More generally, the adage advises how one should solve problems of their own making.

The second law of holes is commonly known as: "when you stop digging, you are still in a hole."

I am here to help.

BREAKING NEWS - Judge DENIES Miami-Dade County's Motion to Dismiss complaint - bridge litigation moves forward.

I just received this order denying the County's Motion to Dismiss - on all counts. The order was rendered at 6:19 PM on Thursday, September 22, 2022.

I will review this three page order and opine on it at a later date, but for now you can read the full three page order (CLICK HERE).

Update on the Palmetto Bay Village Center litigation – Petitioner’s request for Oral Argument Granted – to be set

I am working to truly keep interested readers in the loop.  The Petitioner/Appellant, 1777 Old Cutler Road, LLC (aka the Palmetto Bay Village Center) filed a request for Oral Argument in the case styled as 17777 OLD CUTLER ROAD, LLC VS VILLAGE OF PALMETTO BAY, FLORIDA ET AL, case number: 2022-000012-AP-01 . The court granted this request by order filed July 18, 2022. 

Oral argument is not required to dispose of a case. The Court reviewed the request and the briefs filed in determining whether Oral Argument would be granted.  CLICK HERE to view a prior post where I inserted links to view all the legal briefs filed in this proceeding.

The court could have denied the request and followed up with an order affirming the action of the Palmetto Bay Mayor and Village Council, denying the petition/appeal.  Obviously the court did not take this action, but instead granted the request for oral argument.  The scheduling of Oral Argument does not foreshadow any future decision. The Oral Argument is not currently set, but will be in the near future.

Background, See Prior related post of July 1, 2022: Palmetto Bay Village Center Litigation Update – Petition for Cert (a form of appellate review). All the briefs have been filed. You can download and read them here.

Stay tuned and I will continue to keep you in the loop.

Additional 87th Bridge litigation update - Hearing date set - Response to Motion to Dismiss filed (link to document provided)

A reader provided me with Palmetto Bay's Response in Opposition to the County's Motion to Dismiss [this document was filed at 6:54 PM last night - (6/21), but is not yet posted to the public online docket].  CLICK HERE to download and view this 29 page response.

The hearing on the County's Motion to Dismiss has been scheduled for 3:30 PM, July 11, 2022.

Attorney Norman Waas filed discovery on behalf of Palmetto Bay:  Miami-Dade County has been served with Interrogatories (written questions to be answered in writing under oath) as well as Request for Admissions. 

Prior related post: June 21, 2022, 87th Bridge litigation update - No hearing yet to resolve the County's Motion to Dismiss 87th Avenue Bridge litigation update - 

June 17, 2022: The court rendered an order requiring the parties to prepare and file a comprehensive case management report (pursuant to Administrative Order AO 21-09). This report is presently due no later than Friday July 8, 2022. The report will provide significant details to aid the court in moving this case to resolution. (follow link above to view complete update)

87th Bridge litigation update - No hearing yet to resolve the County's Motion to Dismiss

87th Avenue Bridge litigation update - VILLAGE OF PALMETTO BAY, FLORIDA, CAROLINE HETU, AND CRAIG WOISCHWILL v. MIAMI-DADE COUNTY, FLORIDA, CASE NO. 2022-003627-CA-30.  

June 17, 2022: The court rendered an order requiring the parties to prepare and file a comprehensive case management report (pursuant to Administrative Order AO 21-09). This report is presently due no later than Friday July 8, 2022. The report will provide significant details to aid the court in moving this case to resolution. 

CLICK HERE to view the blank sample  case management report that was provided in the June 17 Case Management Order.

A case management hearing was held on June 17, 2022.  I did attend as an interested observer. The hearing was held via zoom virtual platform. 

IMPORTANT NOTE: Court proceedings are open to the public in Florida with few exceptions and then proceedings may be closed only if there is no reasonable alternative to closure; closure being the least restrictive form available.  

Results of the case management hearing held on June 17, 2022: No substantive items were resolved. The parties were directed to contact the court on the following Tuesday (6/21/2022) and attempt to secure an early hearing date on the pending motion to dismiss. the court also notified the attorneys that this case was put on one hour standby; that all parties should be ready to argue the motion to dismiss within an hours notice (experience tells me the court would attempt to provide more notice as scheduling permits) in the event that sufficient time becomes available on the court hearing docket.

The lawsuit is progressing slowly.  I had commented previously that this case may be different for Palmetto Bay due to appearances by Palmetto Bay Resident Norman Waas as a volunteer attorney on behalf of the Village of Palmetto Bay.  As I stated before, and without reservation, he is a highly respected litigator. He has incentive as a resident who has opposed the bridging of 87th avenue, adding his passion and extensive litigation experience. 

It was also announced at this hearing that Miami-Dade County has schedule an August 2022 groundbreaking for the 87th Avenue Bridge project.

I assume, or at least it is my hope, that the public will receive a full briefing on the status of this lawsuit at the July Regular Village Council Meeting.

Prior related posts:

April 8, 2022, The Weekend Read - the Palmetto Bay bridge litigation. Important updates. Links to important documents supplied

Background information is also provided in a prior related post of February 4, 2022, Mediation ended in an impasse – will the mayor and council file the lawsuit? Key local attorneys are ready to step in for residents in opposition to the bridge. as well as January 20, 2022, Miami-Dade County will hold the Joint meeting with Palmetto Bay today, Thursday, January 20, 2022, at 12:45 PM. There is a public comment section listed on the agenda.

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

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

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

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

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

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

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

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

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

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

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

PRIOR RELATED POSTS - LUXCOM LITIGATION:

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

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

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