South Dade Matters

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

Category: Palmer Trinity

April 1, 2013

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?

7 comments
November 15, 2012

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?

4 comments
September 20, 2012

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.

9 comments
September 20, 2012

PB: Change of Tone?

SDM watched last night’s Committee of the Whole meeting, which started about a half-hour late. The meeting was delayed because the council met in secret with their staff and attorneys to discuss the Palmer Trinity School litigation.

SDM felt that the prior meeting had a substantial impact on the tone of the COW. For example:

As SDM reported earlier this week, the council discussed purchasing the Burch property, which is next to the library on Old Cutler Road. The normally lock-stepped Three Amigos appeared to be suffering a fracture as Vice Mayor Pariser questioned the staff closely about their involvement with the property. It was clear to SDM that there was no consensus among the council majority on what to do with the property.

Twilight Zone Moment: The agenda item said the council would be discussing a purchase of the property, but Mayor Stanczyk focused more on staff’s attempts to help the property’s 90 year old owner with a DERM violation. Either someone screwed up the agenda or the Mayor decided to change the topic.

During a discussion on when the village should hold a ten-year celebration for regular folks – rather than the elite party held last weekend – the Three Amigos again appeared split. Mayor Stanczyk wanted to hold a special event in October or November to appease the public. Members Fiore, Tendrich and Vice Mayor Pariser leaned toward combining a 10 year celebration with the village’s annual picnic usually held in March.

Even the normally subdued village manager bowed up as the Mayor tried to add yet another October event to his small staff’s agenda. And the customarily vociferous Councilwoman Lindsay was practically silent during the meeting, while the usually reticent Councilman Fiore kept hinting that change was coming.

SDM Wonders: What the heck happened at the secret meeting? The logical answer is that the Three Amigos suffered a defection. Was it Stanczyk or Pariser?

SDM Says: While it is amusing to read the tea leaves, SDM prefers an open discussion of the facts. The Village People deserve to know what’s up.

3 comments
September 19, 2012

PB: Understanding Palmetto Bay’s Win

Palmetto Bay taxpayers dodged a small bullet when the Third District Court of Appeals reversed itself yesterday on the question of whether the village had to pay Palmer Trinity School’s legal fees incurred in defending the village’s appeal.

The last part of the sentence above is important because SDM readers should not get the wrong impression about what this narrow victory means.

First and foremost, village taxpayers will not pay Palmer’s lawyers for the appeal, which is a good thing. Unfortunately, taxpayers will pay (probably have already paid) for the village’s lawyers and their costs. SDM does not know how much the village paid its attorneys for the village’s failed appeal.

It is also important to understand that the Third DCA agreed with the Palmer and ruled against the village on the merits. But because the village’s appeal was legally sufficient and not frivolous, Palmer was not entitled to reimbursement of its legal fees and costs incurred in this particular appeal.

Second and more worrying, however, is that the village and Palmer have one or two ongoing lawsuits that have not been resolved. In these suits, Palmer sued the village for relief. So far, every important issue decided on the merits in these suits has gone Palmer’s way.

Therefore, SDM understands that the trial court and, perhaps, the Eleventh Judicial Circuit’s Appeals Panel may still order the village to pay Palmer’s legal fees and costs incurred when Palmer appealed the village’s development approval.

In addition, Palmer continues to prosecute a suit reportedly for $13 million in damages. SDM does not know either the status of this case or the chances Palmer could win. Vice Mayor Brian Pariser seems convinced Palmer will lose, but SDM has demanded a legal opinion.

SDM Says: Tonight’s COW meeting presents an excellent opportunity to tell SDM where this post is wrong.

6 comments
September 18, 2012

Quick Bites: PB Milk Carton Edition

NPO Meeting Video Still Missing

Palmetto Bay’s Kreepy communications department has yet to restore the remainder of the NPO workshop to the village video archive. One SDM wag commented that village staff must have learned at the knee of Rose Mary Woods.

Note to young SDM readers: Rose Mary Woods was President Richard Nixon’s secretary who became notorious for deleting portions of a Nixon tape recording related to the Watergate break-in.

SDM Wonders: Does anyone besides SDM care that village staff destroyed the video, which is a public record? Transparency, like the NPO, is just conceptual in Palmetto Bay.

Palmer Expenses Missing from the COW Agenda

Speaking of topics only SDM appears to be obsessing about, how is it that the first Committee of the Whole meeting since the village’s stunning loss in the Palmer litigation has no agenda item to discuss this most critical of issues?

Can you imagine if your business lost a major lawsuit and faced a huge bill for legal fees, costs and damages? Wouldn’t the issue be discussed at the next board meeting?

Instead of an adult, fact-based discussion, in Palmetto Bay we hear talk of mysterious insurance policies that somehow will cover Palmer’s costs. We hear careless comments from Vice Mayor Pariser essentially dismissing Palmer’s potentially catastrophic suit for damages.

SDM Says: Given your track record Mr. Vice Mayor, SDM wants a second opinion before the election.

Schaffer and Araiza Missing in Action

Two candidates challenging incumbent Councilman for District 2, Howard Tendrich, continue to be missing in action on the issues.

True, Schaffer popped up at the village council meeting to pander to the police union but has yet to publish a website with any of his views on the important issues facing Palmetto Bay. How are voters to know who Tim Schaffer is and what he stands for?

Araiza has a website but it is very vague and contains lots of references to his losing race for mayor two years ago, including a campaign promise not to accept the mayor’s salary. SDM is sure Mayor Shelley Stanczyk will be relieved.

SDM Wonders: If you don’t have the time to publish your views on the issues of the day, then what will voters rely upon to make their decision in November?

Sure, voters will get individual pitches on their doorstep and lots of misleading mail, but why don’t candidates take the time to publish their views on the Palmer litigation? Or, on whether the village should hire more police officers than the director needs? Or, if the village should be dipping into the reserves every time the Mayor concocts another idea for wasting taxpayer’s money?

SDM Says: Mr. Tendrich has to weigh in on these tough decisions. Palmetto Bay voters deserve to know what his missing-in-action challengers would do in his place.

18 comments
September 13, 2012

PB: Palmer Transcripts Must Be Made Public Now

The exchange between Councilman Fiore and Vice Mayor Pariser at the budget hearing on whether there should be a contingency fund set aside to pay for Palmer expenses got SDM to thinking. Here are some questions on Palmer:

1.  Florida law requires that transcripts of attorney-client session, like those held by the council to discuss Palmer, must be filed with the clerk and made part of the public record upon conclusion of the litigation. (See PB: Made in the Shade for the relevant section of the law.) Since the Palmer item has been decided by the council, isn’t the litigation over?

The answer from the village attorney will be complicated because there are either two or three Palmer lawsuits pending. SDM would argue that at least one is over since the village capitulated. The village attorney would argue that none are over because there are issues pending (i.e., the amount of legal fees to be assessed against the village).

If the litigation is over, the transcripts should be entered into the public record immediately.

2.  If the transcripts are not required to be entered into the public record, is there any statutory prohibition preventing the council from entering any of the transcripts into the public record now?

In other words, the statute says the records “shall be made part of the public record upon conclusion of the litigation,” but does not say that a council is prohibited from making the transcripts public earlier.

3.  If there is a statutory prohibition on making the transcript(s) public, is there a law against a council member discussing his or her understanding of how the votes were cast to continue the litigation? SDM can’t find any statute barring a council member from discussing the litigation despite the village attorney’s request not to do so.

The bottom line is that Palmetto Bay voters face a decision on November 6th: whether to keep Mr. Pariser and Mr. Tendrich on the council.

Palmetto Bay voters know that Mr. Pariser seconded the infamous Stanczyk motion to limit Palmer to 900 students and that both voted for the measure. Voters also know that Mr. Tendrich voted against the motion. And, they know that this specific decision caused years of litigation and expense.

What voters do not know is how the council voted behind closed doors regarding Palmer. Voters also do not know the nature of the legal advice the council received. Voters deserve to know what advice Mr. Pariser and Mr. Tendrich received and what they did about it. These decisions inform the public about how Palmetto Bay’s elected officials acted – and will act in the future – when faced with tough policy choices.

SDM Says: Palmetto Bay voters must be given the facts so they can make a sound decision in just over 50 days. Delaying the release of the records serves only the interests of those with something to hide.

14 comments
September 5, 2012

PB: The NPO Must Go

Back in April and in several follow-up posts, this blog has raised a series of objections to Councilwoman Joan Lindsay’s Neighborhood Preservation and Compatibility proposal, also known as the “Neighborhood Protection” Ordinance (“NPO”). The following is a look at the issue at 40,000 feet:

Palmetto Bay Should Not Be Anti-Church and Anti-Private-School

The Village of Palmetto Bay is a community that was known long before incorporation as a family oriented place. In addition to some of the best public schools in the county, Palmetto Bay enjoyed then – and still enjoys today – some of the county’s best private schools.

Palmetto Bay is also home to many, many churches and other houses of worship that cater to the soul and heart of the community’s diverse residents.

The NPO is overkill and is totally unnecessary at best. At worst, it is an attempt to target one property: Christ Fellowship Church. The deniers will say that Christ Fellowship is not the target, but when one looks at the open land available in Palmetto Bay, Christ Fellowship is – in a practical sense – the only property that will suffer under it.

Palmetto Bay was not founded on a platform of being anti-church or anti-school. SDM remembers the debate and the topic of reining in schools and churches never came up. If it had, this village would remain unincorporated.

The NPO is a Time Bomb

As SDM pointed out in an earlier post, this conceptual ordinance is like a time bomb in the code waiting to explode if certain triggers are set off.

SDM and the village attorney agree that if a property is damaged in a hurricane or fire such that a new site plan must be submitted, then the property will have to meet the NPO’s ridiculously stringent requirements. SDM understands also that the South Florida Building Code might force a property into this morass under certain circumstances.

Should they need to, St. Richard’s Catholic Church or Old Cutler Presbyterian – to cite just a couple of examples – could not rebuild on their sites if the NPO passes. Put simply, such a result would not be fair, equitable or good public policy.

Neither is it fair, equitable or good public policy to maintain two sets of zoning codes in perpetuity, which staff says may be required if the council attempts to “grandfather” existing non-residential uses. The more complexity the council imports into the code, the weaker it becomes. Weak codes cause bad feelings and worse: unnecessary litigation.

At the very least, the council owes it to the community to fully investigate the ramifications of abandoning the near-universal principle that nonconforming uses must meet the new code.

Stop Letting the Tail Wag the Dog

SDM understands that some residents near Palmer have been whipped into a lather by some self-serving politicians. (Think: The Three Amigos.) They’ve been told that Palmer is going to disrupt their enjoyment of their property.

The fact is that the right to enjoy one’s property is not exclusive to residential homeowners. When you buy property, you buy into the neighborhood. SDM looked at many of the homes near Palmer and Westminster and found that most if not all of the owners moved in after those schools were already well-established.

Does that mean that Palmer and Westminster can do whatever they please on their property? No, because prior councils enacted strict noise and pollution standards that limit those schools today. The NPO takes this mostly-wise regulatory framework and converts it into a regime that is literally impossible to enforce.

The Palmer case is a sensitive subject for both sides, admittedly. Some like to claim that Palmer stated at a long-ago public hearing that it had no intent to grow. However, as the Palmer zoning resolution states, Palmer’s self-imposed limitation was only in regard to the campus it had at the time:

And we are not attempting to achieve any more development than the 600 students, at the maximum that we have now, on this campus. That is our mission. We have spent two years developing that mission. We have no intention of altering that mission. (Emphasis added by SDM.)

Palmer said it would not expand on its existing campus, but never said it would never expand to a new campus.

Palmer may or may not have known that it would acquire an additional 35 acres of adjacent land. But residents nearby had no reasonable expectation that the only development of that property would be single-family residences because the code permitted much more. If Palmer had not sought to build a school there, someone else would have every right to request a much larger one – up to 2000 students in fact.

The rest of Palmetto Bay’s residents must not be dragged into adopting an onerous, over-burdensome and perhaps illegal regulatory scheme because a couple dozen property owners were misled about Palmer by the “Save Our Palmetto Bay” (SOPs) organization and its ringleader Joan Lindsay.

Candidates: Time to Stand Up and Be Counted

According to the village clerk, six people signed up to run in the November 6th election for Palmetto Bay’s village council:

Vice Mayor:
Karyn Cunningham
John Edward DuBois
Brian W. Pariser

Council – Seat 2:
Jim Araiza
Tim Schaffer
Howard J. Tendrich

SDM understands that the incumbents are split on the NPO: Pariser for and Tendrich against.

SDM Wonders: Where do the others stand on the most contentious issue facing the village?

SDM Says: Come to the meeting tonight and tell the people where you stand. If you don’t care enough to tell us where you stand when the fire is raging, then don’t expect us to listen to you when the village is a pile of smoldering embers.

 

9 comments
August 21, 2012

PB: Palmer Resolution – My Kingdom for a Grammarian

SDM recommends you read the new Palmer resolution, which is part of the Staff Analysis and Resolution for the August 29, 2012 public hearing.

SDM Observations on the Whereas Clauses

1. What is with all the “Whereas” clauses? Are the Three Amigos trying to fuel a third party appeal of the resolution, assuming it passes? The Whereas clauses appear to be re-litigating the case. For example:

WHEREAS, during the discretionary appeal the Village argued, amongst other legal and factual issues, that the Village had adhered to the direction of the 11th Judicial Circuit and that the 11th Judicial Circuit Appellate Panel erred in directing the Village to approve 1,150 students as the Court could only remand the matter and could not direct a certain action be taken as any such direction would be contrary to the mandate authority of the Court in a Certiorari action and inconsistent with the holding of Broward County v. GBV Int’l Ltd., 787 So. 2d. 838 (Fla. 2001); … (Emphasis in the original.)

SDM cannot figure out any other reason to include this paragraph in the resolution except (a) to lay out a basis for a neighbor to appeal, or (b) to further the CYA process. (BTW, amongst?) The next two are both clear examples of CYA:

WHEREAS, on June 22, 2012, the Third District Appellate Panel, consisting of Chief Judge Wells, Senior Judge Schwartz, and Judge Lagoa, held oral argument on the merits of the Village’s discretionary appeal; and,

WHEREAS, despite what appeared to be a favorable outcome to the Village during oral argument, the Third District Appellate Panel, in a unanimous decision, on July 5, 2012, denied Villages (sic) Writ of Certiorari, leaving in place the 11th Circuit Appellate determination as to the mandate and motion to enforce the mandate, intact; …

What’s the point of naming the judges? Is someone sending a message to the court? The second paragraph is almost amusing. Everyone knows oral arguments are meaningless; only the final, “unanimous decision” against the village matters.

On the Conditions

2. Sec. 4.9 – Community Relations Committee – Palmer must create this committee, composed of 3 representatives from the neighborhood (within a 2500 foot radius) appointed by the council, 3 representatives appointed by Palmer, and one appointee from the Village Manager’s office. The committee must meet at least twice per year for the purpose of “communication, discussion and resolution of any items.”

SDM will look forward to the selection of the 4 village representatives. Who will be the Village Manager’s sacrificial lamb? Will Mayor Stanczyk approve his selection in advance? How will a council of 5 select 3 representatives? SDM boldly predicts the SOPs will nominate a slate, the Three Amigos will rubber stamp it, and the committee will turn into a circus.

3. 4.11 – “The applicant will comply…with the Village’s Art in Public Places Ordinance.”

SDM says: Palmer should pay its students to install the artwork, but it won’t be easy. To do so, Palmer must comply with this nonsense first:

Prior to issuance of a final building permit, a temporary certificate of occupancy or certificate of occupancy, the applicant or developer for projects subject to this Division shall be required to…[p]lace artwork, which shall have been approved by the board and Village Council, and which shall have a minimum value of 1.25 percent of the value of the proposed project development, on the property on which the development project is located, not to exceed $400,000.00, in lieu of the fee… Sec. 30-160.8(b)(3), VPB Code of Ordinances.

So which is it? Palmer must install all this art before the building permit, before the TCO, or before the CO? This village can’t even draft an ordinance that makes sense. And what if the “board and Village Council” and Palmer don’t agree on what is “art” or that the art meets the minimum value? SDM boldly predicts more litigation in Palmetto Bay’s future.

3. Sec. 6.1 – “The Applicant shall not use the athletic fields for commercial purposes such as renting, leasing, or allowing third-parties unaffiliated with the operation of the school (no third-party organizations or groups) to use the recreational facilities. Applicant shall annually provide proof of existing division-type play, tournaments, organized sports and uses of its facilities to the Village. Prior to the beginning of each season, for each sport, the Applicant shall provide the Village with a list of proposed events – tournament and league play.”

SDM doesn’t understand this provision. What is a commercial purpose as far as this provision goes? What happens if the schedule for a particular sport changes – as they often do – after the season starts? SDM gets the idea that the neighbors don’t want Palmer to rent out its stadium to a circus but this language is just confusing. SDM says: Confusing language is a recurring theme in Palmetto Bay.

4. Sec. 6.3 – “Solely one (1) athletic tournament, jamboree, or division-type play (where numbers of spectators and opposing team(s) are invited to play on site) shall take place at one time on the property… To be clear, this condition relates to holding one event. Not several events, different sports, at same time. Any athletic tournaments, etc., may take place after normal school operating hours (after 3:00 p.m.) and weekends from 10:00 am and 3:00 p.m.”

SDM’s ninth grade English teacher just rolled over in her grave…so many terrible sentences, so little time. Judge SDM holds this paragraph to be an incomprehensible and unenforceable piece of crap.

5. Sec. 6.7 “…The pool shall not be constructed during Phase 1 and is not to be constructed for at least five (5) years after final zoning approval.”

Is this really necessary at this point? The school has been held up for SIX YEARS already. Now the kids can’t even have a swim meet until 2017? By the way, what does “constructed” mean? Does that mean Palmer can’t ask for a building permit until 2017 or the pool can’t be certified for occupancy until 2017? SDM says: Please clarify.

6. Sec. 7.2 “The Applicant shall covenant that no improvements…shall be permitted within the confines of the buffer area (i.e. no roads, parking, storage sheds, recreational, sports, or any other use that may negatively impact the buffer).” (Emphasis added by SDM.)

SDM begs: Please hire a grammarian! If the idea was to prohibit uses in the buffer, then you shouldn’t include the modifier: “that may negatively impact the buffer.” SDM would argue Palmer can put anything in that buffer so long as it does not negatively impact it, whatever that means.

6. Sec. 7.13 – “Applicant shall provide annual update, plan, as to the maintenance for the buffer areas.”

SDM says: See grammarian comment above. Does Palmer have to provide an update or a plan or both? Anyone?

SDM ran out of gas reading all the punitive provisions in the resolution…they seem to go on forever. The idea that the neighbors were somehow left “unprotected” is only true in the sense that some provisions are so poorly drafted that they may be unenforceable. SDM concludes: There is some irony in that.

 

9 comments
August 20, 2012

PB: Palmer – Roll the Dice and CYA

Palmetto Bay released the agenda, staff report and draft resolution, and several attachments in advance of the August 29, 2012 hearing on Palmer Trinity’s application. SDM Warning: The links to the agenda and staff report take you directly to the documents, which are large PDF files, so you may prefer to click here to download or open them individually.

SDM gave the documents a once-over last night and had to stop reading because, candidly, they are annoying. First level annoyance comes from reading the endless conditions in the resolution itself – SDM apologizes for not going through this junk sooner. The fact that the village dragged this school through this process AFTER Palmer agreed to all of these punitive conditions just shows the depth of the enmity against them. SDM will itemize and comment on them in a subsequent post.

Second level annoyance comes from the blatant effort to absolve the members of council who supported extending the Palmer litigation after it was clearly lost. Here are some of the provisions of the staff report along with SDM comments in bold brackets following.

On May 4, 2010, the Council approved Resolution 2010-48 with conditions, granting a Special Exception and Modified Site Plan to Palmer Trinity (the Applicant) for a proposed private school expansion within their existing 21.92 acre facility (7900 SW 176th Street) and onto the adjacent undeveloped 33.22 acre parcel (8001 SW 184th Street). Palmer Trinity subsequently filed a Writ of Certiorari with the Appellate Division of the 11th Judicial Circuit Court appealing two conditions which pertain to an enrollment cap of 900 students and to a 30 year prohibition limiting any future development of the property beyond the authorized site plan connected to Resolution 2010-48. (Emphasis added by SDM.)

[The Council at the time consisted of former Mayor Flinn, Vice Mayor Pariser, and Councilmembers Stanczyk, Feller, and Tendrich. SDM, as a voter, would think it important to add two facts to the above: 1. Stanczyk moved the 900 student cap on her own initiative - against the recommendation in the staff report - and Vice Mayor Pariser seconded it; and 2. The vote on her motion was three to two with only Tendrich and Feller having the good sense to support the staff. So, when you go into the voting booth in November, remember that Councilmember Tendrich is the only now-serving official with the guts to do the right thing on Palmer when it counted most.]

On May 18, 2011, the Village requested clarification of the 11th Judicial Circuit Court’s Order as to what the scope of the subsequent public hearing may include when the Village Council convened to take, as per the Court, “appropriate action to remove…or otherwise render…ineffectual” those conditions ruled upon by the Court of February 11, 2011. On June 1, 2011, the Appellate Panel reaffirmed its prior Order of May 5, and Ordered the Village to “take no further action…inconsistent with [their May 5, 2011] Order.” This ruling is included herein as Attachment B. On July 19, 2011, the Village held the public hearing on the remanded Resolution 2010-048, deleted the 30 year prohibition, and struck all references to the 900 student enrollment cap. The Village Council took no further action, thus the Council did not strike the language denying Palmer Trinity’s request for an expansion to 1,150 students. (Emphasis added by SDM.)

[Please read the above paragraph slowly and carefully. Note the exercise in picking nits when it suits and just ignoring words altogether when it doesn't. The court in May, 2011 told the village to render ineffectual the 900 student cap and the 30 year prohibition. Instead of reinstating the 1150 number right away, at least three of the councilembers essentially voted to go to court over the meaning of "to render ineffectual." SDM thinks the Three Amigos should be rendered ineffectual.

SDM imagines the court was shocked when village lawyers showed up saying yes, they rendered the cap ineffectual, and had complied with the court order because it took no further action on the cap. No judge wants to be treated like a moron and any third grader would understand that the cumulative effect of the council's actions was to lower the cap on students to 600 (i.e., the cap of 900 was effectual because 600 is even lower than 900...duh). The Three Amigos parsed Palmetto Bay into a windfall of litigation expenses; no other conclusion holds water.]

… On September 8, 2011, Justice Raoul Cantero filed the Village’s request that Palmer Trinity’s motion should be considered a new Certiorari Action. …

 [Is dropping FORMER Supreme Court Justice Raoul Cantero's name here supposed to give comfort to Palmetto Bay taxpayers? Of course it is! He puts his pants on two legs at at time.]

On January 23, 2012, the Village filed a first tiered appeal of the 11th Judicial Circuit, Appellate Panel ruling of December 22, 2011 to the Third District Court of Appeal. The Village argued that requiring the Village Council to grant 1,150 students would have violated clear precedent, Broward County v. GBV Int’l Ltd., 787 So. 2d 838 (Fla. 2001), holding that a court acting in its appellate capacity cannot direct the respondent to enter any particular order or judgment. Moreover, the Village argued that the record reflected competent substantial evidence that supported the Village’s conclusion that Palmer Trinity’s request to “increase the number of students from 600 to 1,150 was not in compliance with the applicable standards”. The Village also argued that the Appellate Panel’s ruling concluded, for the first time, that the Circuit Court’s original opinion and previous clarification had required the Village to remove the approval of an expansion to 900 students and to approve the application for 1,150 students. The Village argued that the Circuit Court’s new interpretation of its prior mandate departed from the essential requirements of law. Nevertheless, on July 5, 2012, the Third District Court of Appeal denied the Village’s request for Writ of Certiorari (Attachment A), and affirmed the 11th Judicial Circuit’s appellate ruling leaving the mandate in tack. (sic) (Emphasis added by SDM.)

[This entire paragraph, especially augmented by the name dropping of a former Supreme Court Justice as noted above, is just a bunch of CYA (covering one's backside). The only sentence that matters is the last one. SDM will be interested to see the transcripts of the attorney-client sessions where the Cantero tactic was discussed. Did Justice Cantero guarantee that the Third DCA would agree with his theory? Did he say it had a 50/50 chance? SDM's hunch is that Cantero hedged his recommendation saying it could go either way. But because the Three Amigos wanted so badly to delay Palmer, they were willing to grasp at Cantero's straw. In the end, the bet Palmetto Bay voters made on Stanczyk, Pariser and Lindsay came up snake eyes.]

15 comments
Follow

Get every new post delivered to your Inbox.

Join 45 other followers