South Dade Matters

Looking at the World South of Miami: Palmetto Bay, Cutler Bay, Pinecrest, South Miami and Miami-Dade County.

Category: Palmer Trinity

PB: Neighborhood Protection = Tear Us Apart

According to the online code repository,, Palmetto Bay’s code prohibits schools and churches from having lighting on their athletic facilities:


Sec. 30-110.7 (9)(d) Lighting shall not be installed (or used) for outdoor recreational areas. (Underwater lighting used for the illumination of a swimming pool, fountain and other water features may be permitted) consistent with section 30-60.6

The above section of the ordinances was adopted by the council in 2012 and lots of us in the community warned that its adoption would be inherently contentious and unfair. This is so because the Village of Palmetto Bay is prohibiting schools and churches in our community from having the same lighting (and other fair uses of their property) that other schools and village parks are allowed to have.

Councilman Tim Schaffer made a courageous choice as part of settling the longstanding public feud that has torn apart this town to amend the above section to state the following:

Lighting shall not be permitted to be installed (or used) for outdoor recreational areas consistent with Section 30-60.6. (Underwater lighting used for the illumination of a swimming pool, fountain and other water features may shall be permitted) consistent with Section 30-60.6.

Instead of calmly evaluating Mr. Schaffer’s provision, which would allow Palmer Trinity, for example, to light their athletic fields, Mayor Stanczyk and Gary Pastorella charged out into the community with their bullhorns. The predictable result was a council chamber filled with ugly personal attacks on Mr. Schaffer’s character and motives.

So here’s the question for those of us who don’t live next to Palmer and are not star gazers who think Bill Sadowski park is their personal property: Do we think having lighted athletic fields (to 10 pm on weekdays and 11 pm on weekends) violates the sanctity of our neighborhoods?

Unfortunately for Mr. Schaffer, a tiny but increasingly loud minority of Palmetto Bay residents have decided that they cannot tolerate lights at Palmer just as they hate the idea of any lights at Coral Reef Park. So for those of us who work late and can’t make a ball game at at Palmer at 4 pm or even 5 pm, we don’t get to watch our kids play.

And for those of us who spend an hour or more behind the wheel, we don’t get to walk or jog through Coral Reef Park for about half the year because the facility must close at nightfall.

And then there’s that little problem of treating private schools and churches differently from the rest of the public assemblies in our community. Some of our elected officials are so confident in their religious discrimination that the see no issue with segregating these uses into a separate section of the code.

One never knows for sure if Palmetto Bay’s regulations constitute reverse spot-zoning prima facie – courts are notoriously inconsistent with zoning decisions. But at least our council has mooted the issue of whether they are treating schools and churches differently; the code is clear on that issue.

SDM Says: Some day we might get an answer on whether Palmetto Bay is illegally discriminating against religious institutions. Then again, maybe some day the vociferous folks who want to shout down these schools and churches will themselves be shouted down by fed up taxpayers.

P.S.: For those of you who keep harping on the fact that “these institutions” don’t pay taxes, you really need to contact state and federal officials to require religious facilities to pay property taxes. And one more thing: cities are a composition of those that vote and those that locate their businesses, schools and churches here. You don’t have any right or power to ignore their needs just because it suits your majoritarian prejudices.

PB: David Zisman, Really?

An FOSDM sent us a copy of an email David Zisman circulated over the weekend announcing his campaign for the Palmetto Bay Council. For those of you who’ve never heard of Mr. Zisman, SDM feels the need to enlighten you on some of his history.

Mr. Behind-The-Scenes

You may not know this fact, but Mr. Zisman is part of a group of the Village People who decide who runs for office and who doesn’t. And you thought voters made these decisions? Not in Mr. Zisman’s world.

SDM posted on this subject in a blog back in November after the village primary (see PB: How To Lose An Election). Mr. Zisman made this hubristic comment:

Thank you SDM for coming to the correct analysis of who to support in the runoff. There should not even have been a runoff except for the efforts of our not so endearing X Mayor. His two candidates went down in a blaze. Howard had already decided not to run back in August when our X Mayor convinced him he would win outright. As for Karyn, she seems nice enough but the lingering distaste for the X Mayor lives on long after his stunning defeat against Lynda Bell. Karyn, next time you run for something, stay far away from Gene Flinn. I can only imagine the support that he promised you and I assume he delivered you nothing.

So Gene Flinn will cost Palmetto Bay about $50,000 for the runoff election that “Never Should Have Been.” Well that’s still cheaper then having him in office.

The back story here is that Mr. Zisman and his cabal had essentially talked (threatened?) former Councilman Tendrich out of running for re-election so that Zisman’s guy would have a chance to finally win a seat. In the end, both Tendrich and Zisman’s guy lost, but the village ended up a winner because Tim “Marathon Man” Schaffer was elected and has been a positive force on the council.

So much for Mr. Zisman’t puppeteer abilities.

Mr. Impolite Makes a Silly Mayor Look Good

SDM reported back in October, 2012 during a hearing on the infamous Stanczyk NPO ordinance that Mr. Zisman’s impolite and hostile public comments made Mayor Stanczyk look good by comparison:

Perhaps the Mayor’s distractedness can be explained by the unusual and outrageous broadsides leveled at her by a Mr. Zisman of Recall Palmetto Bay fame. Zisman got up and instead of commenting on the ordinance on the table spent his three minutes blasting the Mayor over the location of her shed, which he claims is illegal.

The shed ordinance is another bad piece of legislation passed by a council that spends far too much time thinking up new ways to interfere with residents’ lives. The fact that the Mayor got caught up in the shed ordinance thicket makes her just like hundreds of other similarly situated Village People.

After seeing how Mr. Zisman treated the hapless Mayor, SDM can’t imagine him on a dais, regularly raging against his other imagined enemies. One has to observe a level of public discourse that honors the forum and Mr. Zisman’s history argues against his ability to do so.

Mr. Absentee Commission Member

SDM went back and reviewed our notes on Mr. Zisman’s actions during his tenure on the village’s Charter Revision Commission.

While in some instances, especially regarding the NPO charter amendment, Zisman stood up to the onslaught from the Three Amigos’ appointees, on other issues he faded into the woodwork.

One example is his silence on, if not support of, a charter amendment that now requires a four-fifth’s vote of the council to permit a zoning change. Such a procedure places an unfair burden on the very same many small businesses the village wants to attract in the Franjo Triangle and elsewhere. Yet, SDM can’t find a single instance in the charter commission minutes where Zisman – a business owner – makes this case.

SDM Says: Mr. Zisman has every right to run for office and we will wait to see his platform before rendering a final judgment. However, one cannot look at the available parts of his record and his pattern of behavior without wondering whether he has displayed sufficient leadership skills or the requisite temperament of a council member for our wonderful little burgh. SDM hopes some other Village People come forward and give us a good alternative.

PB: Palmer Dispute Fun Fact

Did you know that Palmetto Senior High School sits on a 23 acre campus and serves right around 3,000 students? That works out to about 131 students per acre.

Compare Palmetto with Palmer Trinity. After Palmer’s expansion is completed, Palmer’s campus will be 50+ acres (their current campus is 20+ acres according to the Miami-Dade County Property Appraiser) and will serve 1,150 students.  Palmer’s student density is a measly 23 students per acre!

This is what everyone is so worked up about?

SDM Wonders: What more must Palmer do to satisfy CCOCI when their student density is 20% of the nearest comparable public school? Not to mention that only about half of Palmer’s students are enrolled in the high school. What kind of a community allows a tiny micro-minority to behave as if a modest school expansion is somehow a blight on our community?

PB: Council of Embarrassment Part II

After the village council adopted its budget – probably illegally (i.e., no motion, no second) – it took a three-minute break for about 20 minutes. SDM used the time to decompress from the stress of watching the Mayor “self-immolate” as one of SDM’s commenters wisely observed.

After a self-indulgent presentation by School Board Member Larry Feldman and members of the “education compact” committee, the council took the Palmer item out of order and the real fun started.

The question of what exactly constituted the Palmer item was the first order of business. The village attorney seemed to indicate that the so-called “take-it-or-leave-it” final offer was merely a bargaining ploy. She suggested to the council that they ask Palmer to rise and address them on what exactly they were offering.

After some remarks by the council, Palmer’s Board Chairman told the council that their counter-offer was the base starting point but that Palmer wanted to meet with residents and get their input, too. Then, he sat down.  (Sometimes, a short statement beats the hell out of talking too much.)

The council opened the floor for public comments and the usual suspects got up and pontificated about how Palmer’s offer was unacceptable and how schools ruin their property values, yada, yada, yada. (Seriously, if that statement were true, then why are homes in Palmetto Bay and Pinecrest in such great demand?)

Regular commenter and SDM sleuth Andy Newman offered to participate in solving the problem, though he took no position on the actual item. (Blessed are the peace makers.)

The last speaker was the attorney for CCOCI who rejected Palmer’s settlement and hinted at a third-party challenge should the village modify the development order as part of the settlement. (Let the war continue!)

By the time the matter got to the village council, SDM really wasn’t sure what Palmer was proposing. Was the school willing to modify its position during discussions over drafting a final settlement agreement? (Palmer lawyer Stanley Price seemed to say so.) Or, was the letter the non-negotiable agreement? (As the other Palmer lawyer Sean Cleary stated.)

SDM figured the council would notice the inconsistency in the position and ask a simple question: what do you want us to do tonight? How do we move this ball forward?

But the council didn’t do that. Vice Mayor Dubois seemed to have a handle on what he wanted, which was to accept the Palmer offer with modifications regarding lighting and a couple other issues.

The problem was that Mayor Stanczyk and Councilwoman Lindsay couldn’t get past the semantics of the offer. Stanczyk couldn’t get over her need to lecture Palmer about how they have conducted themselves over the past 6 years. In fact, every time the council seemed to move toward a clearer understanding of a path forward, the Mayor would sidetrack the conversation into some tangential subject.

At one point, Councilwoman Lindsay asked Palmer lawyer Price why the settlement was removing most of the 80 ridiculous conditions imposed on Palmer. Price answered that their legal theory was that the village violated the school’s constitutional rights and those conditions were “fruits of the poisonous tree,” meaning they all flowed from the illegal act and were therefore illegally applied to Palmer.

Stanczyk either never heard of this legal doctrine or didn’t understand why it was important because she began one of her customary lectures. How the attorney stood there and listened to her without jumping over the dais still boggles SDM’s tiny brain.

There was also a little back and forth between Councilwoman Lindsay and Price. After Price answered Lindsay’s question, she wouldn’t accept his explanation and badgered him for an answer he had neither intention or reason to give her. Price said, “this is why it’s impossible to negotiate when a litigant is sitting on the dais” or something like that. (Councilwoman Lindsay’s conflict of interest must be addressed either by herself or by the village attorney. It is unacceptable to pretend it doesn’t exist.)

Once all the back and forth was about to be completed just before midnight, the village attorney reminded the council that they had to extend the meeting by a super majority vote. Uh oh. SDM thought this would be the end of the night. Clearly, Stanczyk and Lindsay didn’t want to deal with the Palmer settlement. They would vote against extending and the settlement would be dead in the water, right? Wrong my furry little friend.

Mayor Stanczyk called for a vote to extend and only Shelley voted no. Huh?

So the meeting continued and at least one member seemed to be paying attention because Vice Mayor Dubois decided to push his item along. He claimed the floor and announced he was going to proceed through several items so that the council could take a vote on an amended item.

Before he spoke a full sentence, Councilwoman Lindsay interrupted him to say she wanted to reconsider her vote to extend the meeting. (SDM Wondered: Would the third set of reconsideration motions be handled better? Of course not!)

Mr. Dubois wasn’t going to be sidetracked this time. He reclaimed the floor and went through a couple of modifications, asking Palmer if they would accept them. They did. (SDM Note: Dubois noted that the lighting issue could not be resolved by settlement, but had to be addressed at a later hearing. Wisely, he set that controversial issue aside.)

Now it was Mayor Stanczyk’s turn to make a fool of herself, again. When Dubois finished, but before he could get his motion before the council, Stanczyk pushed the reconsideration. (You really should watch the end of the meeting because SDM is not describing Shelley’s chaos properly.) To summarize, Stanczyk wasn’t sure of the status of the reconsideration motion.

She cajoled Councilwoman Lindsay – who appeared to have done a head count and figured out that she didn’t have the votes to reconsider – into restating her motion for reconsideration. Then, Stanczyk asked for a second. Nothing…crickets were chirping, so she handed the gavel to the Vice Mayor and seconded the motion herself.

SDM Codebreaker: Now, let us pause for a second to consider what Mrs. Stanczyk did here.

Mistake One: Never give the gavel to your opponent. She handed over the chair duties to the guy she was trying to defeat; gave him the discretion to call and announce the vote. Dumb.

Mistake Two: Before you demand a vote, understand what the consequences are. Though a vote to extend the meeting requires four votes, a motion to reconsider only requires a simple majority. When no one seconded the motion to reconsider, by definition that means she only had two votes: herself and Lindsay. Why call a vote you’re going to lose?

This sequence reminded SDM of certain sports bloopers, like when a quarterback calls for a timeout at the end of the game only to find out he had none left. The result: game over.

Once “Mme. Reconsideration” finished her humiliation, a vote on the Vice Mayor’s motion was called and it passed three to two.

SDM Says: Palmetto Bay should celebrate as the end of the Palmer debacle seems to be on the near horizon. Kudos go to Vice Mayor Dubois for bringing the issue forth and for hanging in there to get it done. Councilmen Fiore and Schaffer deserve credit and support for voting to close this terrible chapter in the brief history of the village.

Palmer would do well to identify some reasonable concessions (maybe some sidewalks?) and to make them before this item returns for a public hearing. Regardless, the new council majority needs to get this matter resolved so we can work on the other major issues facing this village.

Up first is repairing a totally dysfunctional village council and that starts with the Mayor. Send her to remedial classes on Robert’s Rules or buy her a computer program on running meetings. SOMETHING must be done to make these meetings work.

SDM noted that many in the village want to see new commercial construction develop along US 1 and in the Franjo Triangle. Does anyone seriously believe an investor would watch that meeting and come away with the confidence to put her money to work with this kind of political dysfunction? In global terms, our village has a high degree of “political risk,” which will scare away investors rather than lure them here.

For example, later this month the village will consider a proposal by South Motors to modernize its dealership. SDM’s seen the drawings and the facility is beautiful. Will this village drive South Motors crazy like it has done to Palmer and many others? SDM worries that if this Mayor is driving the train, all we will see is more chaos and – God forbid – reconsideration.

Palmer to PB: Show me the Money!

It appears – merely appears – that the Palmer litigation is on the road to a final, out-of-court settlement. We here at SDM feel like we are burying a relative after a long, protracted illness. We’re glad it’s over but we’re going to miss the old bird.

After reading Palmer’s settlement letter (find it here), SDM understands why CCOCI and Gary Pastorella called it a “take-it-or-leave-it” deal. It’s pretty clear that Palmer is in a strong position legally, or at least their attorneys believe this to be the case. Their offer wipes out dozens of ridiculous conditions imposed by the council in 2010. (See SDM’s post PB: My Kingdom for a Grammarian for a discussion of these absurdities.) The result is the kind of resolution that the village would customarily grant were the transaction friendly from the beginning.

Your faithful scribes do not know whether the village sent a message to Palmer saying that they agree to the deal. Probably, the only thing the council could agree to do would be to bring the matter to a final public hearing. September 9 would be the logical date for such a public hearing, but we can’t find any mention of the matter on the agenda. Perhaps a special meeting is being scheduled.

SDM figures dropping the onerous and unworkable conditions saves Palmer hundreds of thousands of dollars. Add in the $200,000 in cash and $600,000 in waived fees and the deal must be worth close to $2 million. Not a bad payday, though it hardly makes up for six long years of torture and bad blood.

Should the village council fail to agree to the resolution – or to try to amend it – taxpayers will be on the hook for a roll of the dice. Most lawyers prefer to agree to a deal rather than let a judge make the call. Judges can be unpredictable in cases where one side or the other appears to have been unreasonable. SDM is eager to hear the village attorney’s opinion of a low and high figure a court might grant if the settlement fizzles out.

Here’s one thing we feel confident in saying: The settlement letter is dated August 21 and the CCOCI email opposing it dropped last weekend. That email was uncannily accurate with respect to what Palmer was demanding in return for a cessation of hostilities. It’s not hard to conclude that someone leaked Palmer’s letter to them before the shade session was held. Remind us again why the attorney client meetings should be secret, Mme. Mayor?

The other point to note is that the settlement only deals with Palmer and the village. What happens with the other defendants? Councilwoman Joan Lindsay and another resident were named as defendants in the 2008 suit. Is Mrs. Lindsay still a litigant? If so, how can she vote on the new resolution? Seems like she has a pretty obvious conflict if she is still in court with Palmer.

Mayor Stanczyk and Councilwoman Lindsay – if she votes – are surely going to vote against the settlement resolution. So it will be up to village voters next fall to evaluate them. We plan on reminding the Village People early and often about their failure to protect us from an $800,000 loss this year added to years of village legal expenses of at least $600,000. That’s without mentioning the hostile political climate they and their minions continue to foment around town.

SDM Says: Palmetto Bay deserves leaders who don’t piss away $1.5 million and then tell us they want to drain the reserve by $6 million. Something’s very wrong with this picture and we need a change.

PB: Lawsuit Exhaustion

The Miami Herald Neighbors ran an interesting article titled “Nine months after the election, lawsuits linger in Palmetto Bay.” It’s a good read and is covering a serious topic for the community, though most SDM readers are familiar with the subject matter by now.

What struck SDM was the following section of the article:

Frustrated residents

Like many Palmetto Bay residents, Andy Newman traces the division in the village back to a series of legal disputes between the village and Palmer Trinity School. Residents and council members have been divided over the size of the school’s planned expansion, its effect on neighbors, and the costs of litigation.

Newman, who lives near the school, said he will be affected by the expansion, including the increase of traffic. But, he added, at this point he wishes the council would move on from Palmer-related contention and function as a unit.

“It has been a hot potato for quite some time,” he said. “But it’s time to just come together and resolve the situation.”

Florida International University law professor George Knox said the contention in Palmetto Bay could be alleviated if elected officials as well as constituents have an informal conversation together – not at a council meeting or through community blogs.

“The idea is to have a heartfelt conversation, face-to-face. What is it that you are fighting against and why?” said Knox, a former Miami city attorney who teaches negotiation and mediation.

“People have taken sides in the political process and that has impaired the ability to cooperate, to work out solutions to community problems,” said Knox. “And if the citizens resort to the courts to resolve political issues, that seems to say that they don’t have confidence in their political system, and they’ve lost their will to fix it.”

(Emphasis added by SDM.)

As a history lesson, this blog ran its first post on July 25, 2011. The topic? A critique of the village council’s behavior toward Palmer Trinity School. Following is the entire text of that initial post (SDM has become much more long-winded since then. :) ) :

At its July 19 meeting, the Palmetto Bay Village Council voted unanimously to send their dispute with Palmer back to the courts for a resolution.  Councilman Patrick Fiore raised a critical question when he noted that the Village had spent nearly $500,000 to defend its position.  Palmetto Bay tax payers need to ask how much more can they afford to spend?

The truth is that the Palmer issue had already created serious divisions in this community before this blog launched. Mr. Newman’s neighbors created a non-profit corporation called Concerned Citizens of Old Cutler, Inc. (CCOCI). Current City Councilwoman Joan Lindsay was a leader of this organization.

CCOCI began a political campaign against Palmer and urged the village council to adopt an extraordinarily hostile posture towards the school – there is no other charitable way to put it. At some point, before Lindsay joined the council, she convinced Mayor Stanczyk to offer a poison pill amendment to the Palmer development approval, which is the now-notorious 900 student limitation that the court found to be so objectionable. (Village staff had recommended a maximum student population of 1,150.)

Apparently, CCOCI figured that the rest of the community would lie down and let them spend the village into poor house over a differential of 150 students spread over 30+ acres of property. Thus began the division in the community between the anti-Palmer faction and those of us who wanted the council to cease and desist.

Now, after years of litigation, the Palmer saga looks to be coming to an end. (It might have ended sooner had the council adopted Mr. Knox’s idea of having a heartfelt conversation face-to-face, but we will never know now.) We still don’t know what the cost in dollars will be to Palmetto Bay, but SDM can’t agree more that “people have taken sides in the political process,” as Mr. Knox said.

Where we disagree is with the notion that communicating through blogs is somehow not part of the natural political process. Would the opponents of CCOCI’s take-no-prisoners attitude know what was going on inside village hall – what’s really going on – without this blog and others acting as a resource? SDM thinks not.

Certainly there are those inside village hall that wake up every morning praying that SDM has retired. With all humility, SDM is sure that they prefer the pre-SDM world to today’s. Pre-SDM, village insiders did whatever they wanted and virtually none of the Village People knew what the CCOci’s puppets were up to. Now, at least some of us are a little better informed.

SDM Says: Sometimes the courts and public speech are the only way to rein-in a government run amok. We’ll shut up and bow out of the conversation when there’s nothing left to report – or when we retire.

SDM Aside to Mr. Knox: Your idea of a community dialogue outside village chambers, with elected officials present, strikes SDM as a violation of the sunshine law as well as an attempt to escape the webcam. Might want to rethink that one…

PB: Shade Session Politics

If you didn’t catch the fiasco at the end of the July 11 Village Council meeting, you really owe it to yourself to watch here starting at 3:37:00. It will drag on, but the denouement is really something to behold.

To Release or Not to Release, That is the Question

This blog has written extensively regarding our opinion that the transcripts of the village council’s private meetings with the village attorney regarding the lawsuit known as Palmer Trinity Private School, Inc. v. Palmetto Bay, also known as “shade sessions,” must be released to the public by law. Well, last week, Vice Mayor John Dubois placed an item on the agenda to release the transcripts and (drumroll) it finally passed!

Before we get to congratulations, we think it’s important to rebut some of the absurd comments made by some members of the council and by some of the usual suspects in the audience, including the odious Gary Pastorella.

Myths about releasing the shade sessions:

  • Previous councils worked in shade sessions thinking they were private; now you’re changing the rules. The village council can’t change the “rules” governing shade sessions because they come directly from state law, specifically Chapter 286, Florida Statutes. Any prior council member was bound to the state law by virtue of holding her office regardless of whether they understood or complied with Florida law on the subject. The fact is that any council has the option to release shade sessions or to avoid even holding the meetings in the first place.
  • Releasing the Third DCA sessions governing the Palmer case  means you have to release future shade sessions. Nonsense: see previous bullet.
  • Releasing a shade session is like showing your hand in poker. Certainly, if a shade session discussion regarding settlement negotiations would tip off the other side, a council has a limited right to withhold that information, but only until a final judgment is rendered. The village attorney has opined that the council can extend this limited privilege to another case. In fact, she asked the Florida Attorney General whether the council could do so, but the A.G. demurred. There is no authority in law or in A.G. opinions supporting the council’s decision to withhold the records from the public.
  • A shade session is like mediation. No, it is not. Mediation discussions remain confidential under separate authority and court rules. They are totally different animals.

In fact, the only question that should have been before the council was whether the shade sessions for the Palmer case decided by the Third DCA must be released now given that the case has been resolved.

To find the answer one can consult the Government in the Sunshine manual (2012) published by the Office of the Attorney General, which is the sunshine law bible for municipal attorneys. The manual posed the following question regarding privileged communications between a council and their attorneys:

When is litigation “concluded” for purposes of s. 286.011(8)(e) [Fla. Stat.]?
An action or lawsuit is “pending” from its inception until the rendition of a final judgment. AGO 06-03.

The Palmer case resulted in a trial court order (or “mandate”) related to a zoning decision. SDM could argue that the mandate itself was akin to a final judgment, which would mean that the village council should have released the session transcripts back in December, 2011.

But the fact that the Third District Court of Appeal denied the village’s appeal of the mandate in July, 2012 – and the village declined to undertake further appeals – certainly meets the test of whether the court’s mandate was a final judgment. It was final because the case was terminated at that point, except for cleanup motions related to attorney’s fees, etc.

Thus, the only question before the village council on July 11, 2013 was whether to finally follow state law.

SDM Says: Kudos to Vice Mayor Dubois for bringing the matter forward. Councilmen Fiore and Schaffer are also due an attaboy for declining to be bullied by the fools sitting in the back of the chamber.

Aside to Mayor Stanczyk: SDM heard you chastise your colleagues after the vote for making the village a laughingstock. The Marathon Man was right to call you out, but he missed the key reply: you have already made the village a laughingstock – just ask around.

The Ugly Repercussions

After the courageous vote by Dubois, Fiore and Schaffer, many of the usual suspects rose to exit the council chamber. On the way out, Councilwoman Joan Lindsay’s husband, Jerry Templer, flipped the bird at his wife and the rest of the council. What a charmer. Of course, the Mayor said nothing…again.

SDM Says: Joan, you may want to tell your boy to behave like a man. He is a public embarrassment and, though you don’t appear to be ashamed of his behavior, SDM is getting mighty sick of his privileged status.

Blog notes: Don’t worry, SDM will get to the AIPP, eventually…it’s still summer break you know.

PB: Test the Market for Village Attorney Services & Release the Transcripts

Time to Test the Market for Legal Services

SDM has been generally supportive of Village Attorney Eve Boutsis, though March, 2013 was an exception.

The Village Council will take up an item by Vice Mayor John Dubois that will put the village attorney’s contract out for public bid and SDM urges all the members of the council to support it.

Ms. Boutsis’ firm has been the only village attorney for Palmetto Bay since its founding 10 years ago. Stability is a good thing and certainly Ms. Boutsis knows the village from a legal perspective better than almost anyone.

But should the position of village attorney be a lifetime appointment without any competitive selection? SDM says absolutely not.

One can make several arguments favoring Ms. Boutsis, though her performance regarding the vote on the parks master plan was perhaps the lowest point in her Palmetto Bay career. She misstated Robert’s Rules of Order so badly that SDM argues the matter is permanently screwed up. She compounded her mistake just a couple of weeks later when she stated that Councilman Fiore could place the matter on the next village council agenda for reconsideration when he clearly could not under the rules of procedure.

SDM would understand if the council terminated her contract just based on last month’s performance, but doing so does not serve the village’s interest. Mr. Dubois’ approach is the correct one. Put the contract out to public bid and measure Ms. Boutsis against the other firms who may wish to offer their services to us.

And, don’t listen to those who say that changing lawyers at this point will somehow permanently damage the village with regard to ongoing litigation. The fact is that lawyers are changed all the time in the real world and the village will do just fine if new counsel is brought on board.

Mr. Dubois’ Other Good Idea: Release the Transcripts

At the  last COW meeting, a majority of the council seemed content to hide behind a misreading of state law with respect to releasing transcripts of the village’s Palmer Trinity shade sessions. Mr. Dubois writes in his memo to the council:

MAJOR POINTS TO BE COVERED: The Florida Sunshine Laws provide for open meetings of governmental bodies when two or more members of the governing board are to be present at a meeting. There is an exemption in the law that provides procedures for conducting private meetings (commonly known as “shade sessions”) between a governmental entity and its attorney to discuss pending litigation. The law is clear that when the litigation is concluded, the transcripts of all shade sessions relating to such litigation shall become part of the public record.

REASON: The transcripts of all shade sessions relating to the litigation related to Palmer Trinity that was heard by the 3rd District Court of Appeals must be disclosed in accordance with State law, as that litigation is concluded.

SDM discussed this issue in detail in PB: Shady Village Council Fights Transparency and could not agree more with the Vice Mayor on this obvious requirement of the law.

SDM Says: Ms. Boutsis should come down clearly and strongly on the side of transparency and strict adherence to Florida law. She must opine that the Village of Palmetto Bay is under a clear legal obligation to release the transcripts as soon as practicable or risk being in violation of the law. Any other recommendation will only reinforce the opinion – of a growing number of village people – that Ms. Boutsis is doing Mayor Stanczyk’s bidding and not upholding her responsibilities to the rest of us.

SDM Wonders: Will the council continue to hide the ball from the public by hiding behind their village attorney’s questionable reading of Florida law?

PB: Palmer’s Latest News – Positive & Perplexing

SDM sometimes wakes up wondering how the universe functions, especially after reading this momentous article in the Miami Herald:

Court rules Palmetto Bay is not on the hook for Palmer Trinity’s legal fees

By Howard Cohen
The Miami Herald

The Miami-Dade Circuit Court has ruled in favor of Palmetto Bay, which argued it does not have to pay the legal fees connected with its longstanding battle over Palmer Trinity School’s expansion.On Nov. 5 the court denied the school’s request that the village pay its attorney’s fees and costs, which could have totaled more than $300,000.

In July, the school won the right to expand to 1,150 students and, with that victory, filed a motion to collect legal fees.

In August, Palmetto Bay petitioned the Third District Court of Appeal to reconsider its July order that the village pay the school’s attorney’s fees. In September, the appeals court reversed its earlier ruling that the village pay the school’s legal fees. The case went back to the Circuit Court, which ruled in favor of the village.

“It’s over. The appeal is over and hopefully everyone can get back to doing what we do,’’ says Palmetto Bay Village Attorney Eve Boutsis. “The city continues to be a city and Palmer Trinity already has its development order and will do what it has to do and hopefully everyone can move on,” Boutsis said Tuesday afternoon. “This was a great result for the village and it ends this cleanly.” (Emphasis added by SDM.)

[SDM Question: Does this mean the transcripts of the shade sessions will be released now?]

Stan Price, the attorney for Palmer Trinity, commented on Wednesday. “We’re extremely disappointed. We don’t know what you have to do to prove bad faith on behalf of government entities before you can get fees, but we’ll continue with the litigation and hopefully, at the end of the day, we’ll be totally vindicated.”

The village still faces a civil suit filed by the school, which contends it’s owed more than $12 million in lost tuition and other revenue as a result of the suits. The village is fighting those charges.

Palmetto Bay Mayor Shelley Stanczyk has faced criticism from some residents who formed a political action committee to have her recalled next year along with Council Member Joan Lindsay for their decisions to fight the school. The Recall Palmetto Bay group has also worked against re-electing Vice Mayor Brian Pariser, who faces a runoff on Nov. 20.

The group is upset because the three council members continued to lead the fight against Palmer, after the court ruled against the village. The village has spent more than $600,000 in legal fees since the dispute began in 2006.

The recall group used the Third District Court of Appeal’s strongly worded language against the village as ammunition. The appeals court ruled that Palmetto Bay acted with “willful disobedience” regarding previous judicial instructions. The court had also noted the village’s appeals were “an exercise in superfluousness and futility.”

Village supporters strongly disagreed with the unusually harsh language. The battle has divided the village during the recent Nov. 6th elections. Pariser finished a close second and faces challenger John DuBois in the runoff. Council member Howard Tendrich, who disagreed with Pariser, Stanczyk and Lindsay, lost his bid for reelection. His challengers, Tim Schaffer and Jim Araiza, will be in the runoff.

On Tuesday, Stanczyk expressed satisfaction with the latest court decision. The court did not elaborate on its decision, saying only the motion was denied.

“This ruling continues the statement that the village has not acted with willful disobedience and that our actions were not frivolous,” she said.

First off, SDM wants to say bravo to the village’s legal team for protecting the taxpayers from this cost. Having to pay $300,000 to Palmer would have been a blow to the village, though a manageable one. Palmetto Bay’s lawyers lost the case, but won a critical skirmish over fees and costs and Ms. Boutsis deserves praise for achieving this result.

But the result also sparks questions in SDM’s tiny mind. For example, why are Palmer’s legal fees and costs half the amount the village has incurred in defending the lawsuit? If the village’s financial exposure was $300,000, why didn’t someone try to settle the matter before we incurred more than half-a-million in legal fees and costs on our end?

Perhaps more importantly, did it make sense for the village to spend tax dollars and to drag Palmer through all of this torment over a net difference of 250 children spread over more than 50 acres of land? Earlier posts noted that village staff believed Palmer could have added some 2,000 students based on the code.  (Staff essentially talked them down to their 1,150 recommendation.) Was this result worth all the time and money spent by the village on this lawsuit?

SDM also wonders why the village elders and legal counsel never discussed the dimensions of the village’s financial exposure with residents. With all due respect, the calls for settlement that have emanated from SDM and the Palmetto Bay News for at least 18 months appear well-founded. While the village attorney deserves kudos for this victory, her obsession with keeping the rest of us in the dark looks to have extended this lawsuit. Inevitably SDM must ask: who benefits when a lawsuit drags on?

Finally, SDM wonders how the Mayor can be so clueless. Seriously, does she not understand that the village lost the lawsuit? That the court said specifically that the village’s behavior in the Palmer litigation amounted to “willful disobedience of the court’s instructions”? [Read more at Palmer Litigation: An Exercise in Superfluousness and Futility.] Frankly, SDM cannot figure out why the village lets her speak to reporters.

SDM Wonders: How does Ms. Boutsis conclude that “[t]his was a great result for the village and it ends this cleanly” given the following:

  • The village lost the underlying suit and spent a small fortune defending its position.
  • Palmetto Bay was slapped with a humiliating and harshly worded order questioning the village’s motives. (Judges are human, too, they talk about cases to one another. SDM cannot see how this case was good for Palmetto Bay’s reputation.)
  • One of the village’s most important institutions (and one of its largest employers, too) has been unable to expand for a minimum of four years. (How many kids missed out on a Palmer education, Mme. “Education” Mayor?)
  • Palmer still has a lawsuit pending on damages.
  • A once tranquil village finds itself divided.

SDM Says: This not so great and not so clean “victory” rings a little hollow. Do the candidates for Vice Mayor and District 2 agree with Ms. Boutsis?

PB: Rebutting Sycophancy

Lots of interesting Palmetto Bay news today so this post is a little longer than usual. First, Palmetto Bay resident Eric Tullberg criticized the village council for transferring over $1 million from the reserve fund. See Mr. Tullberg’s letter here.

Then, former Mayor Eugene Flinn published an analysis on his blog showing that the village council intends to transfer more than $3 million from the carefully husbanded reserve fund.

SDM would expect, given these facts, that most village residents would be asking serious questions of village leaders. Alas, some village residents prefer sycophancy to critical thought. Witness village resident Anthony Gorman’s take on the Recall  [SDM snarky comments in brackets]:

Ten years ago, residents voted to incorporate the village of Palmetto Bay. Many positive changes have occurred, including improved quality of life, the sixth-lowest tax rate in Miami-Dade County, a AA bond rating and a $9 million reserve fund.

[SDM hates to be the bearer of bad tidings, but the true reserve number will be closer to $8.5 million if the Three Amigos get their way, which represents about a 25% reduction from 2011's reserve high water mark of just under $11.5 million! Question for you Mr. Gorman: How long can the reserve last if the village drains it at a rate of 25% per year?]

However, it is election time and a new, politically motivated committee is creating an ugly atmosphere.

[And the folks at Concerned Citizens of Old Cutler and Save Our Palmetto Bay are blameless for instigating the irrational and discriminatory fear of Palmer? People who live in glass houses shouldn't throw stones.]

The Recall Palmetto Bay 2012 effort is not only counterproductive, but could cost residents approximately $60,000 or more. Ironically, the alleged motivation for the recall is the village spending money to defend itself, yet this group thinks it reasonable to burden residents with $60,000 in recall procedure expenditures.

[So let SDM get this straight: Recall supporters are wrong to spend $60,000 while the anti-Palmer jihad has already cost the village $600,000 and counting in a losing effort? Perhaps what you really mean is that in retrospect – based on a cost-benefit analysis – Palmetto Bay should have recalled the Three Amigos a year ago! And, a word about the village “defending itself”: Palmetto Bay is the bad guy here – there, SDM said it. Palmer is the victim that went to court to protect itself.)

While seeking to place blame squarely on current council members, legal cost relative to Palmer Trinity’s expansion began in 2006 with a different Village Council. The current council voted only once to appeal a court’s decision on Palmer Trinity’s expansion.

[As SDM has reported ad nauseam, Palmer filed its application in 2006. A couple of years later, the village council made up of Mayor Flinn, Vice Mayor Pariser, Councilwoman (now Mayor) Stanczyk, Councilman Tendrich and Councilman Feller took up a motion by Stanczyk. Her motion limited Palmer's enrollment to 900 students even though the staff recommended the compromise enrollment of 1150 and there was no competent substantial evidence in the record to support the 900 number. This blatantly political maneuver, which Vice Mayor Pariser seconded, was the council's attempt to assuage Palmer's greedy neighbors. Councilman Tendrich courageously voted against the motion, which ultimately blew up in Stanczk's and Pariser's faces. Note to Mr. Gorman: Two of the Three Amigos were directly responsible for the Palmer debacle. Blame rests where blame belongs.]

How do the three recall committee members justify burdening residents with an expensive recall? We have a mechanism in place to replace council members. If we don’t approve of their performance, we can replace them with our vote.

[Again, SDM apologizes for being the skunk at the garden party, but in addition to our right to vote folks in or out of office every two years, Palmetto Bay's founding mothers and fathers gave us the right of recall. (See Art. II, Sec. 2.7, VPB Charter.) SDM is no big fan of recall, but this council's behavior justifies the action. For example, this council majority continues to push for discriminatory legislation directly threatening village churches, schools, daycare centers and others. They compound their malfeasance by proposing to deplete village reserves by 25% in ONE YEAR. Recall is not a remedy to be undertaken lightly, but the Three Amigos' behavior demonstates that it exists in the charter for a reason.]

Isn’t the real reason for the recall to help get their candidates elected so that they will have three votes on the council in order to support their development-oriented agenda and try to defeat the neighborhood protection ordinances?

[SDM notices your use of the plural "ordinances" - very telling. You see, SDM has been paying close attention to the NPO, which was once sold as a single ordinance. Yesterday, however, the village publicly noticed no fewer than EIGHT ordinances that will implement the litigation-inducing "neighborhood protection" ordinance(s). You are very, very well-informed, sir...hmmmm....]

SDM Says: Mr Gorman, there are many people in the village who support Palmer, support churches and private schools – and, who support private property rights. Your sycophantic aspersions will not deter us from protecting the few from the tyranny of the many.


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