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.

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

This decision hurts. You can’t spin it, though I am sure they will try. I am putting out the opinion rendered yesterday, Tuesday, September 10, 2024, in the case of FAIRCHILD BAY SUBDIVISION LLC VS VILLAGE OFPALMETTO BAY, 2023-000033-AP-01

The Court: the decision to deny Appellant’s zoning reclassification was arbitrary, unreasonable and confiscatory.

Wait for the projected village spin.  This hearing process was not a valiant attempt to protect the village – it is a model of how not to conduct a hearing or make a (bad) decision – I based this upon the stated opinion of the Judges – including 

“… (Palmetto Bay) 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.”

Ouch

What was lost here was any opportunity to actually protect the neighbors through attempting to reach a reasonable compromise. Any compromise could have included covenants and other ways to protect the community in the future.  Of course, it is too hard for this current group to make a decision based upon the evidence and properly apply the law. That takes skill as an elected official (that they lack) as well as political guts.  It is much easier for this group to play to the Plebiscite and then blame the courts (or others before them) when their poor decision(s) hits the fan.

The court cited staff reports and testimony where the applicants could not meet the requirements of the zoning code under the current designation (see page 16 of the opinion) (which is why they were seek a change – to be compatible with the surrounding areas).

As detailed in the opinion, 

“A thorough review of the record fails to establish substantial compete evidence to support the Village’s decision. The Respondent (Palmetto Bay) fails to identify any specific material and relevant statements from the public hearing that constitute substantial compete evidence. The evidence primarily addressed the Property’s ownership history, the potential loss of mango trees and Petitioner’s site plan for the future development of the Property...."

By the way, the application was filed February 23, 2023 (see foot note 1 on page 2 of the decision). This means this entire action falls upon the Elected Officials elected in 2000 and 2022. This was based upon the municipal code put in place by that (current) group of elected officials.

This was not an error in the defense of this certiorari action, this is an error that started before the zoning hearing.  The errors occurred in how the elected officials failed to properly manage the zoning matter; in essence – well, as the opinion stated:

“(Palmetto Bay) failed to follow the essential requirements of the law, rendered a decision wholly unsupported by competent substantial evidence rind subjected Petitioner to reverse spot zoning that resulted in a confiscatory taking of its real property.”

The lesson is that if you deny, the mayor and village council better have some evidence to base their denial on.  They didn’t. The lost and now the village residents will pay the price for their foolishness.

This is a long opinion, designed (in my opinion) to provide guidance in order to prevent future errors.

The closing paragraph is the concurring opinion fairly sums this up:

For the reasons stated in the majority opinion, the decision to deny Appellant’s zoning reclassification was arbitrary, unreasonable and confiscatory. Kugel, 206 So. 2d at 285 (finding denial of a rezoning request unreasonable and arbitrary where “[t]he character of the property has already been changed by other actions of the municipality.”). Accordingly, I would grant the Writ of Certiorari because Respondent 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.

More to come at some future date. For now, I will wait for any village spin.  No matter how you spin it, this decision does NOT reflect well upon the officials of the Village of Palmetto Bay.

And note, this decision is "not final" until any motion for rehearing is disposed of, but I doubt very seriously the decision will be reversed upon any request for reconsideration.

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.

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

Elected official hypocrisy 101 - you can’t make this up. When is a tree worth saving? SPOILER ALERT: only when it is not on Village owned property.

I love to hear from readers and find it interesting what some readers point out to me.  I verified and I am passing it on.  I am posting pictures below that really do expose the current vice mayor and other elected officials of this village for the ‘do as we say, not as we do” mentality.

BACKGROUND – One of my most popular posts in recent history was 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.

As detailed in the Court's opinion of September 10, 2024, 

“A thorough review of the record fails to establish substantial compete evidence to support the Village’s decision. The Respondent (Palmetto Bay) fails to identify any specific material and relevant statements from the public hearing that constitute substantial compete evidence. The evidence primarily addressed the Property’s ownership history, the potential loss of mango trees and Petitioner’s site plan for the future development of the Property...."(bold and underline access added)

Residents speaking against the project, as did the current Vice Mayor, were concerned for the loss of the mango trees located on the applicant’s property. Yes, that is right, as the court outlined in thee order (on page 4):

“Vice Mayor Tellam questioned the existing mango trees on the Property and potential loss of shade, …” (Sounds great, but wait until you get to the pictures below and prior post references to see the difference between her talk and the actual action)

Back to the background contained in the order. The court really took this counsel to task.  Outlining the relevant criteria in the applicable Code of Ordinances, (pages 11-13 of the Order). I find it a bit embarrassing that the court opinion recognized, and pointed out (last paragraph on page 13) that:

Rather than question Petitioner’s counsel regarding any of the above enumerated criteria, Counsel members asked questions related to the cost to acquire the Property; the Property’s ownership history; the Property’s topography; the potential loss of mango trees; and Petitioner’s site plan for the future development of the Property. ….

It was noted in this opinion that

“None of the questions, … or discussion by Council members were relevant to the established criteria for rezoning.” (Bold emphasis added)

This is quite an indictment. Now if the above wasn’t bad enough (a true traffic wreck of a zoning hearing), it gets worse. And for this I am simply relying upon the photos below.  What do they show? Here is my opinion (and as discussed with others who pointed this out to me):

The Vice Mayor says she wants to protect the mango trees – but apparently only on the applicant’s property (private property, not owned by the Village).  Her alleged concern at zoning hearings does not match what has happened on village property under her watch. Look at the before and after photos of the property where the Village maintains the Public Works facility.  Look how all the shade trees – including many mature, long-time producing mango trees were cleared in 2024 – this year – so that village vehicles can park (no longer in the shade) on dirt (unpaved) grounds.  Would private property owners be allowed to do this? Of course not, as I stated earlier this is Vice Mayor Tellam once again showing disdain for trees on Village owned property and right of ways.  It has happened under this vice mayor and present council all along SW 136 Street for the mega sidewalk: Coral Reef Park: the Public Works building and soon to Coral Reef Park - where several mature oaks will be cleared for the community room.

No environmentalist would stand by and allow this to happen. Unfortunately we see here another politician who claims to be an environmentalist; but is really anything but.

Photos above - before the trees were felled

Photos below the canopy removed from the property sometime in 2024

- a mud pit and unpaved parking for village vehicles.

Yes, the before and after pictures are of the Village property located on the far south end of Palmetto Bay Park.  This is our elected officials doing their worst to set a bad example for all private property owners. 

A clear case of “do as I say, not as I do.” It really is sad; the trees have no chance in Palmetto Bay under this current council.

But it is sadder to see the blatant hypocrisy in how trees are treated on private property versus land owned by Palmetto Bay under this current council.

Prior related posts on how this current council does not value trees or a property tree canopy:

September 9, 2021, Remember the trees I warned the Village about in April? Well those trees are now dead. Why it matters.

June 14, 2024, Direct question - one tree saved - but I am seeking a statement from current Palmetto Bay officials: please state with certainty how many trees in Coral Reef Park will be chopped down for the new building

April 26, 2021, Poor Tree. Who determined where and how to locate the Coral Reef Park Bridge? Regulations ignored. Once again, Palmetto Bay acts say: do as (Palmetto Bay) says, not as Palmetto Bay does.

June 9, 2024, We have a chance to save a few, but important trees from destruction. Please take the minute to sign the petition!

August 3, 2019, Update on Palmetto Bay's tree fiasco - not so good, trees uprooted and left by the side of the road

The best example - may be another one of my opinion posts - the post of 

June 18, 2024, I may have found the reason why the current mayor and council remove so many trees - Dendrophobia