THE LAST ONE’S OUT ?…

Dear Readers…The Palm Club was promised sewers…both by Pompano Beach and LBTS…and depending on who you speak to…it would be done under the annexation agreement along with their neighbors using septic and living on public streets or it would be done for the “greater good” along with the other private road Sunset Lane …due to, some say, the potential environmental hazard they posed for the Town if left in place….

As the Palm Club waited its turn and watched its neighbors including Sunset Lane,  the “cat got out of the bag” and was heard by those in the dark concerning Palm Club’s “horizontal co-op/condo” status…until outgoing Mayor Parker said he had just become aware of its “status” when he had gone to Palm Club to see about purchasing a property there…Residents of the Palm Club and others involved in the annexation agreement said Mayor Parker absolutely knew from the get-go and he was giving Palm Club payback for not backing him to make another run for Mayor…Whichever was true…this news became a hot potato in the next election…pitting those who  wanted to honor the agreement, and hung their hats on the environmental issue vs. those who lived in condos such as Sea Ranch Club, who were vehemently against using taxpayer monies on a private property…And when Sunset Lane was brought up as the reason to go forward with Palm Club…the response coming from these “vertical” condos was “make them pay it back!”…..Readers will recall in the Sausage Series (cat.) the recounting of the campaign for CIC candidates and the McIntee-MacMillan push for the sewers…trying to make the CIC candidates change their stance and back them…While Peanuts Wick happily “flip-flopped” as he was counseled by the M & Ms…Candidates Clottey and Dodd stood their ground opposing it….Readers will also recall that then- Comm. McIntee did a 180 at a debate practice night once he saw that the votes against the sewers would give the CIC in the win from SRC ….far outnumbering Palm Club’s votes….Recently Vice- Mayor McIntee gave the Palm Club another dose of “pulling the rug out” from underneath them with his P.R. stunt of saying he thought they qualified for the Shovel Ready Stimulus Program being offered from the Federal Government…conveniently leaving out the fact that Palm Club was a private property (“details” he said)…Eventually it went the way most thought it would…We hear Congressman Klein said the fund could not be for a private property (hearsay)…All the while the Town was assisting Palm Club with VM McIntee…….the Town knew Palm Club was preparing to follow through on their Bert J. Harris suit…with boxes of public records requests being produced in Town Hall…resulting in a double standard of the Town’s actions…when compared to the Marchelos brothers and the Town’s refusal to speak to them, much less help them in any capacity!…

Count III of the May 19,2009 Palm Club complaint deals with the sewers….

Public record…also to be discussed in a “shade session” on May 26,2009 with the Town Atty. and the Commission…

Excerpts and description of the sections of the complaint…

COUNT III

Specific Performance Of Annexation Agreement With Regard To Sewer Installation

The Palm Club re-alleges paragraphs 1-13…(same as previous post for property/heights)….This is an action for specific performance of a written contract to install sewers with a value in excess of $15,000, located in Broward County, Fl….Under the Annexation Agreement , the Town and SBCA (South Beach Civic Assoc) acknowledged that: There will be excess revenues generated from real and personal property located within the Intracoastal/Beach Area including ad valorem taxes, franchise , utility or other fees, or special assessments or service charges net of cost and expenses of the Town in providing municipal services to the Intracoastal/ Beach Area. Consistent with its legal authority to do so, the Town agrees that, for a period of no less than ten years, such excess revenues will be expended upon capital improvements to be provided within the Intracoastal/Beach Area…Anticipated capital improvements include, but are not limited to, sanitary sewers, including mains, laterals and points of connections to private property….Annex. Agreement paragraph 11 also provides the Town acknowledges that SBCA is relying upon Town’s representatives as to its authority to enter into and perform its obligations under this agreement…in furtherance of its obligations under the Annex. Agreement , the Town adopted Town Resolution 2005-06…Annex. Agreement , adopted in Town Resolution 2000-1458 and further implemented through Town Res. 2005-06 is a valid agreement between Town and SBCA, that was intended to benefit Palm Club among other entities and persons…Town Res. 2005-06 provides that the Town was “authorizing and directing the appropriate town officials to include the Sunset Lane and Palm Club Drive in the Town’s pending sewer improvement project” through the adoption of Town Res. 2005-06…intended to implement the Intracoastal/Beach Area Capital Improvement Program that upon information and belief included installation of sanitary sewers on Palm Club Drive within the Home Property….Town expressly contemplated cessation of use of septic tanks in the areas that would be connected to the sanitary system…In reliance on Town Res. 2005-06 Palm Club continued to rely on the applicable provisions of the Annex. Agreement and the Town’s repeated representations that the sewer lines were to be constructed on Pal Club Drive with the Home Property ….The town put the sewers in on Sunset Lane …Sunset Lane was annexed in at the same time…Sunset Lane is a private road with private residences….Pursuant to the Annex. Agreement  and in addition to Sunset Lane the Town put sewers in all the residences and real property in the Intracoastal/ Beach Area/annexed area ecept for Pal Club Drive and the residences on the Home Property…Pursuant to the Annex. Agreement the Town is obligated to install sanitary sewers on Palm Club Drive  and within the Home Property, to which the residents of Palm Club will hook- up their single-family homes….Upon information and belief the Town already incurred expenses and began to perform under its obligations relating to the installation of the sanitary sewers for Palm Club, including but not limited to already having ordered and received the 60% and 90% engineering plans in preparation for beginning the installation of the sewers that were promised…Furthermore  upon information and belief the Town secured funding to complete the installation of such sewers…Notwithstanding the foregoing, in May of 2008, the Town adopted Res. 2008-14…provides that Res. 2005-06 is hereby amended to omit all references to Palm Club Drive…By its adoption the Town determined that it will not install sewers in Palm Club…By the adoption of Res. 2008-14, the Town has confirmed the Town’s breach of the Annex. Agreement…SBCA and Palm Club have to date fully performed their obligations under the agreement…If court was to award compensatory damages to palm Club for Town’s breach of Annex. Agreement, such damages would be inadequate to afford complete justice between parties, because no amount of damages will result in the Town itself performing its obligations under the Annex. Agreement…A judgment against the Town for specific performance of the Annex. Agreement is appropriate because damages would be adequate to compensate Palm Club for the Town’s breach of the Annex. Agreement…the Plaintiff Palm Club respectfully demands judgment the Town of LBTS be required to perform its obligation under Annex. Agreement and install sewers along Palm Club and within Home Property…that Palm Club recover costs pursuant to Fl. Statute…and Court grant such other and further relief in favor of  Palm Club as the Court deems appropriate and just…

Count IV

Breach Of Annexation Agreement With Regard To Sewers Installation

This action seeking damages in excess of $15,000, and is pleaded in alternative to Count III…As result of  Town Resolution 2008-14, Town breached the Annex. Agreement….Upon information and belief, if Palm Club is required to perform the Town’s obligations itself, it will cost Palm Club in excess of $3,350,000 to install sanitary sewers along Palm Club Drive and within the Home Property…As such, Palm Club has been damaged as a result of the Town’s failure to install sewers the Town represented it would install in an amount necessary to install sewers to provide service to its residents…Wherefore the Plaintiff Palm Club respectfully demands judgment for damages against Defendent, Town of LBTS including all expenses of Palm Club to install sewers and that Palm Club recover costs pursuant to Fl. Statute…and Court grant such other and further relief in favor of  Palm Club as the Court deems appropriate and just…

Count VII…Declaratory Relief With Regard To Sewer Installation…

Equal Protection….

The Town has installed sanitary sewer improvements for private residences on Sunset Lane …cost at least $750,000,….for a significantly lower number of Town residents and taxpayers than number residing in Palm Club….the Home Property  is only real property in Intracoastal/Beach Area /annexed area of the Town on which the Town has not installed sewers…Palm Club has an actual, practical, present, need for declaration as to whether the Town’s adoption of Resolution 2008-14 constitutes unequal and inequitable treatment of Palm Club as compared to the other property owners and residents in the Intracoastal/ Beach Area/ annexed area and the Town in violation of the Equal Protection Clauses of the Constitutions of the State of Fl. and the U.S…and a need for declaration as to whether the Town’s refusal to abide by its agreement constitutes a violation of the Equal Protection Clauses of the Constitutions of the State of Fl. and the U.S….Palm Club and the Town have antagonistic and adverse interests  in the subject matter of the above-set forth controversies….The antagonistic and adverse interests relative to the above-set forth controversies are all before this Court…Palm Club does not have an adequate legal remedy with respect to the above-set forth controversies….Palm Club reserves any and all rights it has to seek supplementary relief as a result of any declaration made by this Court pursuant to Fl. Statute…

BC- So…. the “horizontal co-op/condo” we have used to explain Palm Club’s status is now to be referred as the “Home Property”….and the Palm Club is seeking what they say is equal treatment in the Intracoastal/Beach Area…. ..asking the Town to abide by the annexation agreement with the SBCA who represented the whole Intracoastal/Beach Area and agreed to sewers for all….

more to come….

Tags: bert j harris, local government, Local Politics, Scoops, sewers
Posted in Uncategorized

LBTS VS BERT J HARRIS………..VESTED RIGHTS….

Dear Readers,

What’s the “game plan”?…We ponder about the strategy that is being tossed around at the Town law firm of  Weiss Serota Helfman Pastoriza Cole & Boniske, P.L. ……now that we are faced with four properties making good on their intentions and delivering their Bert J. Harris lawsuits to the Circuit Court of the 17th Judicial circuit in and for Broward County on May 19th ,2009…Palm Club-Case # 09028548/Coastal Arms Case # 09028558/ Del Rado Inc d/b/a El dorado Cub- Case # 09028554/ James Edmondson (Sea Watch Restaurant) Case # 09028566… All are represented by Ruden McClosky Smith Schuster & Russell PA…..

http://www.wsh-law.com/

http://www.ruden.com/

On the agenda for the May 26,2009 Commission meeting …is the following…

17.    TOWN ATTORNEY REPORT

a.    Notice of a shade session to obtain the Town Commission’s advice on potential settlement negotiations and strategy related to litigation expenditures in the matters of Coastal Arms, Inc. v Town of Lauderdale-By-The-Sea; James Edmondson v. Town of Lauderdale-By-The-Sea; The Palm Yacht & Beach Club, Inc. v. Town of Lauderdale-By-The-Sea; and Delrado, Inc. d/b/a El Dorado Club v. Town of Lauderdale-By-The-Sea, pursuant to Section 286.011(8), Florida Statutes.

BC- We do know that the Commissioners were each given a copy of the complaints and were contacted by the Town Attorney Susan Trevarthen….They will be able to discuss what the options are in this shade session…but we are told they are not allowed to divulge what they discuss,in this closed door session and the content will not be available to the public until after the litigation has been resolved..

There are many ways this can go and you can count on it being the number one topic of numerous newspaper articles and editorials going forth…It could very well be the deciding factor for who is sitting on the dais in 2010… ….

The complaints…which are all public record…are the same for Bert J. Harris …(The Palm Club includes additional Counts regarding their sewers)…..

Excerpts and description of filed complaint…from one Plaintiff…..

Palm Club…gives an account of the annexation agreement, what was allowed under unincorporated Broward County, and that they have exhausted all administrative procedures and/or remedies….Count I the Bert J. Harris Claim…says this is an action for compensation under Bert J. Harris …Palm Club is seeking in excess of $15,000, exclusive of interest, costs and attorney’s fee….more on the annexation agreement…the applicable land use and zoning  (RM-25) that was in effect at the time…the May 24,2005 Resolution 2005-08…”zoning in process”…a moratorium on development ….April 11,2006 Resolution 2006-08 which directed the Town Clerk to deliver a copy of the Town Charter  reflecting an amendment initiated by referendum and passed through a general election vote on March 14,2006 to the Fl. Sec. of  State…the Height Amendment inordinately burdens , restricts and limits Palm Club’s “existing use” of Club property and/or Palm Club’s vested rights to a specific use of the Club Property….Prior to the institution of zoning- in- progress , Palm Club received offers of purchase for a development of a multi-story project…prior to this suit, Palm Club complied with all pre-suit requirements as prescribed by state statute…submitted  their claim with a bona fide valid appraisal…Although the height amendment did not become a part of the Town’s Charter until March, 2006, Palm Club “conservatively” estimated it “lost” the right to develop to 15 stories upon adoption of a zoning in progress on May 24,2005….The Town sought an advisory opinion from Fl. Atty. General (without notifying Palm Club) on or about July 20,2006…Atty. General issued an opinion that the height amendment was government action…despite the opinion on August 2,2006 the Town filed a declaratory judgment action seeking a declaration that height amendment was a charter amendment initiated by referendum of voters and as such is not “action of a government entity” within Bert J. Harris Act….

On or about November 16,2006, the Town provided Palm Club with a response purporting to be an offer of settlement in accordance with Fl. statute ..offered no changes to the Town’s actions

BC- What kind of purported settlement?…

In the November response letter , the Town asserted Palm Club’s claim was not ripe for ajudication because they (PC) had not been denied a development order of permit for development of property…and it would not be ripe until the Delaratory Action was resolved….February 2,2007 the Court entered an order granting Defendent’s (Town) motion to dismiss the complaint in the Declatory Action…February 20, 2007 the Town filed a Motion for Leave to Amend Complaint or, in the Alternative for entry of final appealable order…Town filed Amended Complaint on May 2, 2007…March 12, 2007 and within one year of effective date of the Resolution 2006-08 and the Height Amendment Palm Club submitted a second claim under Bert J. Harris Act…along with bona fide appraisal…

On or about August 17, 2007, The Town provided Palm Club with a response to the Palm Club’s second notice of claim, purporting to be an offer of settlement in accordance to Fl. Statute…with no offer to make changes to Town’s action…

BC- A second purported settlement offer?…

On or about May of 2008 the Town Atty. responsible for filing the Declaratory Action (Jim Cherof) was replaced…Shortly after the new Town Atty. ( Dan Abbott) took office, the Town voluntarily dismissed the Town’s Amended Complaint on June 9, 2008 and the Court entered in a Final Order of Dismissal of the Town’s Declaratory Action on June 11,2008..

BC- at the May 27,2008 Regular Commission meeting… (previous post)…

’16. Town Atty. Report

Bert J Harris ….Mr Abbott gave history of previous Town Atty….case was dismissed by judge who asked for an advisory claim…previous Town Atty…refiled…Mr Abbott felt to do so would bring the same dismissal…and waste taxpayers money for his services…asked to dismiss lawsuit….passes 5-0…’

BC-Was this the right move?…Note- Atty. Abbott was replaced with  Atty. Trevarthen, because we were told she is a  land use expert….which we were in need of…we were told…a little pre-planning for Bert J Harris ….perhaps?…

Pursuant to Fl. Statute Palm Club rejected the Town’s purported settlement offers and ripeness decisions  and now seeks compensation in this court….

As a direct result of the actions described above to enact the zoning- in- progress and /or Height Amendment Palm Club is unable to attain its reasonable, investment backed expectations it would have realized through sale and/or development of Club Property….causing permanent, substantial and measurable loss in their fair market value of the Club Property…they want atty fees and costs recovered from the Town…and demand a jury trial….

VESTED RIGHTS….(also being used by plaintiffs in their complaint)……

When this writer first became involved in Town, joining the P.& Z Board, I read the Land Use Development that was before the previous commission…It contained a section on “vested rights”…that just may allow the Town staff to decide not to fight and to allow the properties in question to do as they are asserting are their vested rights. After going to the podium and speaking on this multiple times, bringing it up to various commissioners and staff, it fell on deaf ears. The Land Use Development was finally passed and it includes the “vested rights” still. Perhaps this will be the ultimate ending of the Bert J. Harris lawsuits when all is said and done….HMMMM……..

OF NOTE # 5…(5)   Nothing in this section prohibits the Town staff from reconsidering and reversing a denial of a vested rights application at any time prior to the start of the hearing before the hearing officer….

BC- could this be the “safety clause” that allows the Town on its own to say…”never mind”?….

Sec. 30-12.  Vested rights determinations.
The Town recognizes that certain land development rights of property owners may be vested with respect to approved land uses, density or intensity of development and/or staging or phasing of development. Any person claiming vested rights to develop property shall make application for a vested rights determination.
(1)   The Town Manager or his or her designee shall review the application and any supporting documents and shall consult with other staff and the Attorney’s Office. Within 45 days after the receipt of a complete and sufficient application, the Town Manager or his or her designee shall either grant the application for vested rights or respond to the applicant in writing the reason or reasons for denial. The decision shall be mailed by U.S. Mail to the address indicated on the application, return receipt requested.
(2)   If the applicant disagrees with the determination of the Town Manager, he or she may appeal the decision of the staff by notifying the Town in writing that he or she is appealing the decision. The notification shall be received by the Town no later than 30 days after the Town “renders” his or her decision on the application. If the notification is not received within 30 days after rendition of the decision, the applicant is deemed to have waived his or her right to challenge the decision. For the purposes of this section, the term “renders” means the date the applicant initials or otherwise indicates receipt of the decision. However, in the event the decision is not accepted or is returned, the term “renders” means ten calendar days after the date the decision was mailed.
(3)   Upon receipt by the Town of a timely notice of appeal, the appeal shall be assigned to a hearing officer. The procedures for conducting hearings shall be approved by a Resolution of the Town Commission. The hearing shall be set for no later than 60 days from the date of the notice of appeal unless an extension of time is requested or agreed to by the applicant.
(4)   The Town Attorney shall represent the Town in the administrative hearing. The hearing officer shall determine whether vested rights have been created pursuant to the provisions set forth within this section, applicable statutes, or established case law and shall determine whether any time limitation is applicable to such vested rights.
(5)   Nothing in this section prohibits the Town staff from reconsidering and reversing a denial of a vested rights application at any time prior to the start of the hearing before the hearing officer.
(6)   The hearing officer shall within 45 days of the hearing issue a proposed order which shall include findings of fact and conclusions of law with respect to the claim of vested rights.
(7)   The Town Commissioners shall within thirty (30) days of receipt of the proposed order issue its determination which shall be in the form of a resolution.
(Ord. No. 2007-14, § 2(Exh. A), 9-25-07; Ord. No. 2007-14, § 2(Exh. A), 9-25-07)

http://www.municode.com/resources/gateway.asp?pid=14431&sid=9

more to come……

Tags: bert j harris, local government, Local Politics, Scoops, vested rights
Posted in Uncategorized