Random thoughts during Caronavirus. Are we receiving mixed messages?

Today, Wednesday, March 25, 2020, is another day working from home rather than heading to court for hearings or to the office. I am going outside to exercise as well as traveling to essential businesses. The itinerary for today has included the local grocery, and maybe later I will go to the pool supply store for chlorine (although, quite frankly, I have smelled quite enough bleach and other disinfectant to last for a while).

Making the best of the current situation.

Things I am thankful for today:

• Having learned to work from home as well as being properly equipped to work at home. [of course, the squirrels outside are quite distracting - cute, but still distracting - as is the chainsaw at work nearby (is that really essential today?)]
• E-mail.
• The Courts (both DOAH as well as the Miami-Dade County/Circuits Courts) having a robust e-filing and online docket system.
• Clients who are still at work - and those asking me to update their wills, and, possibly more importantly, their advanced directives such as a living will, healthcare surrogate designation, durable power of attorney and anatomical donations as part of their estate plans. Now is a great time to review, or if necessary, create your plan.
• With that in mind - thank you to Publix. The Miami Herald reports that this grocery chain will be putting plexiglass barriers at all checkout lanes, pharmacies and customer service desks. Chain-wide installation, set to begin this weekend, is expected to take two weeks.  See Miami Herald, March 25, 2020, Publix will install partitions in response to coronavirus pandemic, by David J. Neal.
• Of course, I am also thankful for the weather and the ability  to get outside  to safely exercise and work off the stress caused on everyone by this pandemic, personally and financially.

Things I am not so thankful for today? I will limit it to one today - My "Corona-Beard" it is really getting a bit annoying (sorry, no photos, but perhaps you can mark the lack of a corona-beard photo to your personal 'things you are thankful for today' column).

I have posted photos taken by a law partner of a 'current normal' downtown/Brickell (photos taken 3/24) that reveal a ghost town and even worse (horrors!) the condo pool deck has been closed!

MIXED MESSAGES?

The City of Miami on Tuesday ordered residents to stay home except when shopping, exercising and taking other trips to jobs and other places already exempted from widespread closure orders from the Coronavirus crisis. I reviewed the order.  It does allow for outdoor activities consistent with CDC recommended social distancing. I would think many Palmetto Bay residents are already in voluntary compliance - but wishing others would as well.

HOWEVER - in Palmetto Bay - it appears to me (and others) that Palmetto Bay elected officials are taking the opposite approach by promoting social mobility. While it is reported in the Miami-Herald that multiple local governments joined together on Monday (March 23) to tell their residents to stay home as much as possible to prevent the Coronavirus, Palmetto Bay has taken a different tack - extending the hours of the Freebee which in essence increases and encourages people to get out. It's not like people can dine out at local restaurants or attend the movies (those businesses are shuttered).

Palmetto Bay Government competing with existing businesses - Curiously, this extension includes the 'new' service of Freebee providing delivery of take out, which again - I wonder why the taxpayers are reaching deeper into their pockets to pay for enhanced services - especially when UBER and LYFT have stepped in to provide these services (at no charge to taxpayers) . This has been a topic of conversation. Isn't this the service that Doordash, UberEats, etc., already provide?  Is someone trying to reinvent the wheel here?   Lots of restaurants are offering Doordash for free, anyway.  Only we're not limited to Palmetto Bay with the real services or subsidized by the taxpayers.

Is Palmetto Bay offering to have my Pizza delivered by Freebee to my door in 30 minutes or its free?

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

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

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

This letter begins:

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

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

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

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

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

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

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

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

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

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

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

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

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

Remedies – the $21,760,000.00 question.

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

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

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

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

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

Big Issues with remedies

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

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

The “Toolbox” (resource materials):

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

RELIEF FROM BURDENS ON REAL PROPERTY RIGHTS

CHAPTER 70

RELIEF FROM BURDENS ON REAL PROPERTY RIGHTS

70.001   Private property rights protection.

70.002  Property Owner Bill of Rights.

70.20 Balancing of interests.

70.45 Governmental exactions.

70.51  Land use and environmental dispute resolution.

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

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

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

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

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

The dismissal simply states that LUXCOM has 

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

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

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

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

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

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

$34,000,000

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

$12,240,000

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

$21,760,000

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

Another small bite update in the LUXCOM case. LUXCOM’S Motion for continuance GRANTED. The LUXCOM case has been rescheduled for final hearing on January 29 through 31, 2020, beginning at 9:00 a.m., at the Palmetto Bay Village Hall.

LUXCOM’S Motion for continuance was GRANTED on Wednesday, December 11, 2019. The LUXCOM case has been rescheduled for final hearing on January 29 through 31, 2020, beginning at 9:00 a.m., at the Palmetto Bay Village Hall.

CLICK HERE to view the motion of LUXCOM for this continuance.

CLICK HERE to view the response filed by the Village of Palmetto Bay.

CLICK HERE to view LUXCOM'S Reply in Further Support of Petitioner's Motion for Continuance & Re-Scheduling of Final Hearing for Thirty (30) Days

CLICK HERE to view the Order granting the continuance, rescheduling the final hearing to January 29 through 31, 2020, beginning at 9:00 a.m., at the Palmetto Bay Village Hall.

IMPACT: Those setting aside the December dates to watch the hearing now need to find other things to do and now must set aside January 29-31, 2020. I was waiting for the Pre Hearing Stipulation to be filing. The date for the filing will now be pushed back even later that the 12/12 date.

PRIOR RELATED POST - Small bite updates on the LUXCOM DOAH litigation. Waiting on the pretrial stip, due date moved to 12/12 and the trial beginning 12/18

Many other updates on this case are available on this blog, CLICK HERE.

Small bite updates on the LUXCOM DOAH litigation. Waiting on the pretrial stip, due date moved to 12/12 and the trial beginning 12/18

More litigation updates. The quick updates on the LUXCOM litigation currently pending before the Florida Division of Administrative Hearings (DOAH). Not much interesting here. Housekeeping issues. The interesting read will be the Pre Hearing Stipulation. The date for the filing has been moved from 12/8 to 12/12.

December 4: The motion filed by Palmetto Bay was granted (CLICK HERE for the prior related post - CLICK HERE to view the actual one-page order). Palmetto Bay shall be responsible for having a notary public in India with Mr. Mohammed Khan on the assigned hearing date to swear Mr. Mohammed Khan in as a witness and shall provide the requisite documentation for proof. Fla. Admin. Code R. 28-106.213(5)(b).

Palmetto Bay is also required to make all arrangements for a speaker telephone to be available at the final hearing.

IMPACT: Telephone testimony. Burden is on Palmetto Bay to make sure everything is properly set up and working if they want this testimony to go forward.

Why not teleconferencing? Not necessary. Testimony is allowed via deposition in many proceedings. Reading a deposition offers less insight into the witness you neither observe the witness live nor can the judge hear any inflection or hesitation in the voice of the witness. 

December 5: Both parties; LUXCOM and Palmetto Bay joined into an agreed motion asking the court to extend the time to submit the Pre-Hearing Stipulation from December 8, to December 12. The grounds include the 12/5 depo of Petitioner’s Expert Witness and the 12/6 deposition of Palmetto Bay’s Expert Witness. The parties point out that the issues, witnesses, and exhibits may be affected by the deposition of the expert witnesses. (CLICK HERE to read the joint motion).

December 5: The motion is granted. The Pre-hearing stipulation shall be filed with the FRANCINE M. FFOLKES, Administrative Law Judge, no later than December 12, 2019. (CLICK HERE to read this Order).

IMPACT: The pretrial stipulation will be of great interest. Tune in to review that filing. I expect it to be filed at end of day, due to the significance of this document, though it would be nice if filed early.

LUXCOM update – DOAH Judge grant’s LUXCOM’s last-minute motion to allow the filing of an Amended Petition.

Petitioner LUXCOM prevailed in its attempt to amend the petition.  

CLICK HERE to view the order GRANTING its motion.  You can CLICK HERE to view LUXCOM's REPLY in further support of Petitioner's Motion for Leave to Serve Amended Petition that was filed to address the issues raised in Palmetto Bay's response.

IMPACT: The final hearing for December 18 - 20 will be on the global issues raised in the Amended Petition.

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: 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

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

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

Procedural update on the Luxcom administrative action. 10/29/2019 Order Dismissing Village of Palmetto Bay Council and Amending Caption.

Not exactly an Earth shaking update.  The ALJ rendered an Order Dismissing Village of Palmetto Bay Council and Amending Caption as posted on the online DOAH docket, Tuesday, October 29, 2019. CLICK HERE to view the order as posted online.

IMPACT: Only the caption will change. The true issues remain.

The case continues to move forward.

PRIOR RELATED POST: Monday, October 28, 2019, LUXCOM litigation update. Attorneys for Petitioner Luxcom, LLC, have agreed to Dismiss the Village Of Palmetto Bay Council as named Respondents

I will continue to keep you advised.

Eugene Flinn

LUXCOM litigation update. Attorneys for Petitioner Luxcom, LLC, have agreed to Dismiss the Village Of Palmetto Bay Council as named Respondents

YACHT CLUB BY LUXCOM, LLC. Files a notice of voluntary dismissal as to the Village Council as defendant at 4:51 PM, Monday, October 28, 2019.  This is an admission that Village Attorney Dexter Lehtinen (and his firm) were correct in their limited Motion to dismiss filed as to Village of Palmetto Bay Council) arguing that the Village of Palmetto Bay Council is not a proper party to this proceeding. There are two parties listed as respondents to this action. The Village of Palmetto Bay as a municipal corporation as well as the Village of Palmetto Bay Council.

NOTICE OF VOLUNTARY DISMISSAL WITHOUT PREJUDICE

            Petitioner, YACHT CLUB BY LUXCOM, LLC, hereby files its Notice of Voluntary Dismissal Without Prejudice only as to Respondent, VILLAGE OF PALMETTO BAY COUNCIL, with each party to bear their own costs and attorneys’ fees

This is a partial victory, but the Village of Palmetto Bay remains a Respondent in this action that moves forward to the December 2019 hearing. 

This Council (and the taxpaying public) will miss Village Attorney Dexter Lehtinen's litigation skills. Let’s hope the Village Council finds a way to convince ‘retiring’ Village Attorney Dexter Lehtinen and his firm to carry on in the present litigated cases as runoff work.

See PRIOR RELATED POST of October 21, 2019, Monday, 10/21/2019: Motion to dismiss filed as to Village of Palmetto Bay Council. Update on Administrative action filed by Petitioner, YACHT CLUB BY LUXCOM, LLC. Once again, you can only read this information on this blog or on the official DOAH docket as there remains no update to the Palmetto Bay litigation page or in any of the email blasts of the village or our elected officials.

This notice was worked out between the parties (each side to bear their own costs and attorneys' fees). The Dismissal was filed in response to the motion filed last Monday, October 21, 2019, to dismiss the Petition as against the Village of Palmetto Bay Council arguing that the Village of Palmetto Bay Council is not a proper party to this proceeding. There are two parties listed as respondents to this action. The Village of Palmetto Bay as a municipal corporation as well as the Village of Palmetto Bay Council.

CLICK HERE to view this Notice of Voluntary Dismissal filed Monday, October 28, 2019. It is short and to the point.

More on the scapegoating - see a PRIOR RELATED POST of October 28, 2019, Village Council Chaos - Interaction with Village Attorney at a council meeting - Village Mayor & Council: You have been told repeatedly. You are the voting body. You have responsibilities of reading and knowing what you are voting on.

Litigation update: Palmetto Bay V. Miami-Dade County, case no.: 2019-031036-CA-01, filed 10/18/2019

Because you have the right to know and have indicated an interest in being kept in the loop:

Litigation update. The Village of Palmetto Bay filed the complaint for injunctive relief on October 18, 2019.  (CLICK HERE to access copies of the documents filed to date - the 6 page verified complaint and civil cover sheet). Here is where this lawsuit stands:

VILLAGE OF PALMETTO BAY, FLORIDA VS MIAMI-DADE COUNTY
Local Case Number: 2019-031036-CA-01
Filing Date: 10/18/2019
State Case Number: 132019CA031036000001
Judicial Section: CA11 - Honorable Mavel Ruiz

This is a complaint for an injunction, an order of the court, that would prohibit the County from removing the 4 way stop signs.  Note that this lawsuit seeks to halt the removal of the additional stop signs on SW 87 Avenue, as there were previously stop signs for east/west traffic on SW 174th Street that are not at risk of being removed. 

The County has stated that if the Village did not approve the traffic circle at the October 17, 2019 meeting, that the additional Stop Signs must be removed by the close of business on October 18, 2019.  The Village Council voted down the traffic circle 5-0 at that Oct. 18, 2019, meeting.

The arguments raised in the suit for injunctive relief include the following:

• Governmental action cannot be arbitrary and capricious.  
• The County previously approved the Additional Stop Signs. 
• Requiring the immediate removal of the Additional Stop Signs with no alternative traffic safety measure in place is arbitrary and capricious and a threat to the health, safety, and welfare of the residents of the Village.  
• All conditions precedent to the filing of this action have been met or otherwise waived.

What the lawsuit seeks (relief sought):

An injunction to prevent the removal of the Additional Stop Signs is in the public interest because it the Additional Stop Signs increase safety and protect the public health, safety and welfare at the Dangerous Intersection.  

The "prayer for relief" or what the Village asks for is plead as follows:

WHEREFORE, for the foregoing reasons, the Village respectfully requests that this Court enter an injunction to prohibit the County from removing or requiring the removal of the Additional Stop Signs without the installation or provision of an alternate safety measure in place, and grant any other relief that this Court deems just and proper. 

I will keep you advised as to how this suit progresses. To date (as of this blog post) only the complaint and the civil cover sheet have been filed.

What is next? It is up to the defendant, Miami-Dade County. The Judge in this case may issue a preliminary injunction should Palmetto Bay demonstrate: 

(1) a substantial likelihood of success on the merits; 
(2) that irreparable injury will be suffered unless the injunction issues; 
(3) the threatened injury to the movant outweighs whatever damage the proposed injunction may cause the opposing party; and 
(4) if issued, the injunction would not be adverse to the public interest. 

Intersection at issue 87/174

Note that both a preliminary (and permanent) injunction is an extraordinary and drastic remedy which is not granted unless the movant (here Palmetto Bay) establishes the burden of persuasion as to each of the four listed prerequisites.

PRIOR RELATED POST - please see the October 16, 2019, post: Try working with the County - Miami-Dade County paid for the other traffic circles under my administrations - the money is there, but it takes a partnership for additional information.

SPECIAL NOTE relating to public access and transparency: Palmetto Bay officials continue to neglect to update the “litigation page” online to include any information relating to this newly filed lawsuit seeking injunctive relief (or other recent actions) on the official village website (at least as of  1:00 PM, Wednesday, 10/23/2019). 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. 

After all, if DOAH and Miami-Dade Clerk of Courts 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. The ADA is an excuse or dodge as applied by Palmetto Bay.

Eugene Flinn