South Dade Matters

SDM has criticized Palmetto Bay Village Attorney Eve Boutsis a number of times in these pages. SDM stands by those specific criticisms, but is compelled to give credit where credit is due.

SDM recently finished reading a long, carefully drafted memo titled “Ballot Questions – Charter Revision Commission dated July 12, 2012.” Get it here while it remains online. The memo spends the better part of 20 pages engaged in a lengthy legal analysis of the so called “neighborhood protection” charter amendment.

For those Palmetto Bay residents fatigued and concerned by the Village of Lawsuits, this memo surely will increase your angst. The text of the offending charter proposal is as follows:

Creating a provision called Neighborhood Protection whereby: 1) single-family-residential zoned properties shall be protected from the negative impacts of adjacent or nearby non-single-familyresidential uses and 2) four affirmative votes of the Council shall be required to approve a zoning change, conditional use, or special exception in any single-family-residential district. Excluded are all commercial, business, and multi-family residential districts.

Ms. Boutsis divides her analysis between a relatively short review of section 2 and a long exposition of section 1. While concluding that the four-fifths affirmative vote required by section 2 “would survive judicial review,” Boutsis includes this warning:

In 2006, the City of St. Pete Beach charter was modified to require a referendum for certain upzoning actions and Comprehensive Plan Amendments. This resulted in nine very expensive lawsuits, a settlement, and lawsuits over the settlement. Ultimately, the elected officials were replaced and the amendments were repealed. The City spent more on legal fees than its annual budget. (Emphasis and smiley face added by SDM.)

Well, that’s encouraging! Did Palmetto Bay import the three amigos from St. Pete Beach?

Ok, let’s move on to section 1, which gets about TWELVE pages of treatment. Ms. Boutsis begins her analysis by debunking the idea that “neigborhood protection” is common in municipal charters:

Please note, the Charter Revision Commission had asked the Village Attorney to review other charters to see if there is a similar provision in other cities as to that proposed by the resident, Mrs. Tellam, as it relates to “Neighborhood Protection.” The Village Attorney reviewed over 30 different charters within Miami-Dade County, and the state, at large. The charters reviewed, included, but were not limited to: Miami Lakes, Doral, Pinecrest, Coral Gables, South Miami, Key Biscayne, Biscayne Park, Homestead, Cutler Bay, Miami-Dade County, Golden Beach, Miami Springs, St. Petersburg, Tampa, St Pete Beach, Orlando, Broward County, Ft. Lauderdale, Sarasota, St. Augustine, and Jacksonville. To date, the proponent of the ballot language, Mrs. Tellam and Mr. Gibbs, the land use lawyer working with Mrs. Tellam, have not provided any language from a charter that is similar to the language being proposed for insertion in the Village’s charter at the proposed new section 10.2. (Emphasis added by SDM.)

Got that SOPs? This “neighborhood protection” nonsense will be tested – legally and otherwise – here in Palmetto Bay first! But SDM, everything has to be tried first somewhere, right? Of course, so Ms. Boutsis also analyzed a couple of options future litigants might try in court:

• Bert J. Harris Act. A complainant could possibly assert a Bert J. Harris Act challenge. A Court could rule, based upon an lias applied challenge” that “the charter amendment imposes an inordinate burden, or restriction or limit to private property rights, and would inordinately burden an existing use of real property or a vested right to a specific use of real property.” Fla. Stat. 70.001. It could result in a substantial damage claim being filed against the Village.
• The Religious Land Use and Institutionalized Person Act (RLUIPA). A person filing a RLUIPA claim could seek Declaratory Judgment relief, remand, injunctive relief damages, and attorney’s fees. There has been over a decade of litigation in RLUIPA claims. City of Hollywood was subject to a RLUIPA claim and settled the litigation for over $4,000,000. As part of the settlement, the City was subject to oversite by the Department of Justice and a consent decree requiring full compliance with RLUIPA. In that matter the principal claim related to a challenge of the City’s zoning regulations, and a challenge to the individual decision in applying the zoning regulations to a property. The consent decree also provided for individual liability, if a violation of RLUIPA was found during the enforcement time period required under the agreement.
• Florida RLUIPA. The Village Attorney cannot advise whether a Florida or Federal RLUIPA claim would be successful in advance of the Village implementing an ordinance as imposed by the charter amendment. Any challenge would be based upon application of the charter amendment and associated ordinance, and would be dependent upon the facts presented in that particular challenge. Moreover, there would be a need for the complainant to demonstrate the substantial burden on the exercise of religion. Any impacts to ancillary matters or uses may not raise an effective state or federal RLUIP A claim. (SDM Note: Florida RLUIPA provides for attorney’s fees for the aggrieved, successful party.) (Emphasis added by SDM.)

So, there are two or three viable federal and state constitutional and/or statutory challenges available to an institutional property owner that gets caught up in Palmetto Bay’s “neighborhood protection” scheme. Of course, these options are on top of the general options for relief related to improper denial of special exceptions.

SDM Code Breaker: Palmetto Bay’s property owners will be treated in this first ever regulatory experiment by the mad doctors Stanczyk, Lindsay and Pariser. When the experiment fails, tax payers will foot the bill.

And we’re not done yet!

As a bonus, Ms. Boutsis also reviews the village’s treatment of charter schools, which could be implicated by the “neighoborhood protection” charter amendment. (Shouldn’t SDM just call this the lawyer’s full employment charter amendment – maybe LA FECHA, for short? As in, the date Palmetto Bay tax payers face the financial reckoning?)

Sorry for the sidebar…so LA FECHA might apply to charter schools such as the one involved in that lesser known Palmetto Bay school lawsuit: Shores at Palmetto Bay, LLC v. Palmetto Bay. According to Boutsis, the Shores lawsuit also may shed some very expensive light on how far Palmetto Bay can go when it tries to regulate charter schools.

Kudos to Boutsis

It takes some serious guts to tell your boss when he or she is in the wrong. Ms. Boutsis, you deserve applause from the residents of Palmetto Bay because you have the courage to stand up for the oath you swore. Your clients, the people of Palmetto Bay, come first for you and this memo shows you’re representing your clients well.

SDM says: You done good, Mme. Attorney and Palmetto Bay tax payers need to watch your back.