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Here’s The Scoop … Shore Court … SB 360 Decared “Unconstitutional” … “Expunged” And “Invalidated” ….Will This Be The Return Of The LBTS Cul-De-Sac? ….

September 2, 2010 by Barbara

IS THE RETURN OF THE SHORE COURT CUL-DE-SAC IN THE BAG? ….

Dear Readers …Senate Bill 360 discussed by the LBTS Commission in Oct. & Nov. last year (see below) concerning  property in Town asking for extensions to build was declared “unconstitutional” and “expunged” according to our Town law firm (see below)  or “invalidated” according to a post on boardroombrief.com (see below) … The result is yet to be seen as it relates to the property in question in LBTS… We joined late in the case due to the property on Shore Ct. and the desire of the last Commission to get the project finished and the area cleaned up or to tear the structure down and get one or more of former VM McIntee’s beloved cul-de-sacs returned to the Town …He spent alot time on the dais espousing what a loss they were to the Town …His analogy and opining of the lost cul-de-sacs and their importance to the Town was inaccurat at best…A look at the Public Notices section of the newspaper often shows cities turning over cul-de-sacs to development…It’s  a common practice in development resulting in no negative impact to the municipalities … (prev. posts)…

What still needs to happen?… To see if there will be an appeal …per the Town Atty….(see below) …which may be due to the belief stated below that the final summary judgment is internally inconsistent. …

Also, there’s this …from those that are not happy with the ruling…(see below)….”The 2010 Florida Legislature adopted, and Governor Crist signed into law, Senate Bill 1752, which essentially restated and recodified the provisions of SB 360 regarding the two-year extension of certain development orders or permits. Standing alone SB 1752 does not appear to be vulnerable to the same analysis or argument that was applied by the court in its rulings on SB 360, even if the court subsequently determines (we would suggest incorrectly) that the unconstitutional provisions of SB 360 cannot be severed from the remaining provisions and that the statute, as a whole, is unconstitutional; or if the state allows the ruling to stand.” ….

………………….

Oct 27, 2009 Reg. Comm. Mtg. minutes … excerpt….Consent Agenda 12b…..

“Mayor Minnet asked whether Senate Bill 360 was mandated Attorney

Trevarthen stated that the Bill was still under review.

Mayor Minnet believed the owners invested in Lauderdale-By-The-Sea and

unfortunately the market fell She added that the bottom line was that the property

owners had to take care of the property.

Vice Mayor Mclntee believed extenuating circumstances would indicate a shortage in

supplies and or workers. He stated that they bought the property got their permits and

walked away Vice Mayor Mclntee pointed out that the Code specifically states that

enforcement for violations shall be 50 for each day of violation for 1 to 30 days $100

per day for 31- 60 days and $500 for over 61 days. He did not feel the Commission

was obligated to grant the extension because there were no extenuating

circumstances .Vice Mayor Mclntee believed the fines should be enforced

Attorney Grant Smith stated that the best people are having credit problems. He added

that the reality of the situation was that they requested an extension under Senate Bill

360 which states the only requirement was to tell the Town they were extending under

the Bill.

Commissioner Silverstone was concerned that the request was for 2 years. He did not

believe it would take 2 years to finish the building.

Attorney Trevarthen said the Statute said that permit holders notify the local

government. She explained that the reason it was under review was because Statute

did not say that anyone can notify it had a series of qualifiers. Attorney Trevarthen

stated that the purpose of the review was to make sure that they properly evoked the

Statute.

Commissioner Clottey said the Commission was told that they ran out of money and the

banks would not give them credit. She added that now they wanted to use their own

money and asked how the lack of money could be an extenuating circumstance.

Attorney Trevarthen explained that would be in the judgment of the Commission. She

added that the decision needed to be made independent of the Statute.

Mayor Minnet asked whether the owners were ready to start immediately if they

received their request Attorney Smith said there was a surface water management

issue regarding impact fees to the County. He said they would not pay the fees if the

Town did not grant the extension and therefore would not be able to sell quickly.

BC- This was deferred to the Nov.10, 2009 meeting…

………………….

Town Commission Regular Meeting Minutes

November 10 2009 … 15. Old Business

“c. Commission to approve a two 2 year time extension for the completion of the

development at 231 Shore Court per the applicant’s request and per Ordinance 6-12

(c ) Backup attached (Assistant Town Manager Olinzock) Deferred at the

October 27, 2009 Commission meeting by Commissioner Clottey

Commissioner Silverstone made a motion to grant the extension for 1 year and if it did

not get built within 1 year put a condition in there that it must either be torn down or

something had to be done to clean up the area Commissioner Silverstone only wanted

to extend for 1 year with those conditions.

Attorney Trevarthen stated that there were 2 issues before the Commission Manager

Colon stated that the Commission could revise the code.

David Hyatt said he was located between Garden Court and Shore Court and had

complained numerous times He said his property value went down and felt like he

currently lived in the slums.

Alan Crimsman suggested the Commission take another look at the development order

as there were specific agreements that were entered into in relation to what the party

was supposed to give back with the granting of the land Crimsman believed they were

given 2 years to complete the project and not 2 years to begin building.

Attorney Trevarthen stated that they had until July 2010 to complete the project before

the return of the property She said the condition was completion within 3 years.

Attorney Grant Smith stated that the document was not recorded that way. Attorney

Trevarthen indicated that the minutes where all parties were in agreement showed the

intent. Attorney Smith was concerned with Commissioner Silverstone’s motion for a 1

year extension. He wanted clarification that in the alternative if the lawsuit succeeded

then it would be 1 year. Commissioner Silverstone indicated he would go along with the

original intent as pointed out by Attorney Trevarthen. He said if the building was not

completed by the expiration date the he would follow the agreement and return the Cul

de Sac back to the Town.

Attorney Trevarthen stated that her understanding of the motion was that it was based

on the separate request that had been brought under Town Code and not whether the

challenge failed. She explained that the Commission had an application that they

needed to do something with and Commissioner Silverstone placed an option on the

table.

Vice Mayor Mclntee stated that the reason they were at this stage was because the

applicant created a monster and was not being a good neighbor.

Commissioner Dodd asked when the applicant intended to start construction.

Mayor Minnet reviewed the motion to grant a 1 year extension for Shore Court and 226

Garden Court. Commissioner Silverstone added 2 conditions 1) that if not completed

within 1 year that it get torn down and 2) that in the interim whatever vacant land is out

there be maintained no mounds of dirt grass to be planted and maintained for the

duration of the project.

Attorney James White added to the condition “that if not completed would be torn down”

that if in fact the property were deemed to be an unsafe structure under the Florida

Building Code or that the permit had expired, the Building Official had the ability to

require that the structure be demolished or removed from the site as could the Broward

County Building official.

Commissioner Silverstone made a motion to extend the meeting to 11: 301pm .All voted

in favor.

Commissioner Dodd did not believe they could bring in a 1 year extension when the

agreement allowed 3 years. Commissioner Silverstone stated this was an alternative

Commissioner Clottey was also concerned as she did want to give them 3 years

Mayor Minnet clarified that the previous motion was strictly to move our Town forward to

join the lawsuit with the City of Weston and be a member of the 14 cities already against

the Senate Bill 360 and now Commissioner Silverstone wanted to give 231 Shore

Court and 226 Garden Court a 1 year extension. Attorney White asked for clarification

that that would be pursuant to Town Code Section 6.12 (c). Commissioner Silverstone

agreed Commissioner Clottey asked if she could add a friendly amendment that

construction start within 60 days Attorney Trevarthen stated that construction had

already started.

Attorney Trevarthen summed up the motion as a 1 year extension for agenda items 15c,

231 Shore Court and 15d 226 Garden Court with the requirements for proper

maintenance and grassing the area and tearing down the structure if not complete.

Vice Mayor Mclntee seconded the motion for discussion. He asked for clarification that

the motion was to enact a 1 year extension with conditions if the Senate Bill 360 was

overturned. Commissioner Silverstone said that was correct Commissioner Clottey

wanted an expiration date placed on the permit so they would not have to go through

this again. Attorney Trevarthen suggested the expiration date be whatever the

expiration date was for each permit.

Attorney White suggested the condition to tear down the structure could be modified to

read that pursuant to the Florida Building Code and any other applicable Code

provisions would direct the Building Official to investigate and pursue the pre-existing

procedure.

The motion carried 3-1. Commissioner Clottey voted no. Mayor Minnet recused herself.

She explained she was sub-contractor for sub-contractor of the general contractor

who did work for the law firm that represented his client.”

http://www.lauderdalebythesea-fl.gov/town/arc-meetings-2009.htm

………………….

BC- phone #’s, names other than LBTS TM & TAtty. and e-mails addresses have been deleted or altered for privacy..on post below…

……………………
“From: Jamie Alan Cole
Sent: Thursday, August 26, 2010 3:01 PM
To: westonfl.org; keybiscayne.fl.gov; cutlerbay-fl.gov; leegov.com;deerfield-beach.com; miamigardens-fl.gov; fruitlandpark.org; cityofparkland.org; palmettobay-fl.gov; copbfl.com;cityofhomestead.com; CooperCityFL.org; northmiamifl.gov; coralgables.com; ppines.com; townofmalabar.org; broward.org; stlucieco.org; circuit8.org; islamorada.fl.us; lauderdalebythesea-fl.gov; cityofhomestead.com; ; Susan L. Trevarthen
Subject: SB 360 Lawsuit

WE WON!!!!
Attached is a Final Summary Judgment that was entered by the Honorable Judge Charles A. Francis today. Judge Francis granted our motion for summary judgment on the unfunded mandate challenge, ruling that “SB 360 (Ch. 2009-96) is declared unconstitutional as a violation of Article VII, Section 18(a), Florida Constitution, and The Secretary of State is ordered to expunge said law from the official records of this State.” As to the single subject rule, he found that it is moot as a result of the statutory codification that was passed earlier this year.
This is a major decision that will have implications throughout the State. We do not know at this time whether the defendants will appeal (and whether, if they do, we would cross-appeal on the single subject issue).

Jamie Alan Cole, Esq.
Managing Director

Weiss Serota Helfman Pastoriza Cole & Boniske, P.L.”
………………..

“From: Connie Hoffmann
Sent: Fri 8/27/2010 10:58 AM
To: Jeff Bowman; Bud Bentley; Birute Ann Clottey; Chris Vincent; Roseann Minnet; Scot Sasser; Stuart Dodd
Subject: FW: SB 360 declared unconstitutional and ordered expunged from state law
FYI, if you hadn’t received this info directly. Connie

From: Rebecca OHara
Sent: Thursday, August 26, 2010 4:39 PM
To: Rebecca OHara
Subject: SB 360 declared unconstitutional and ordered expunged from state law Good Afternoon,

Today, a Leon County circuit court declared unconstitutional Ch. 2009-096, Laws of Florida, otherwise known as SB 360. SB 360 was passed in 2009 and imposed sweeping changes for 246 cities and counties defined in the bill as “Dense Urban Land Areas”. In short, the bill designated such areas as automatically exempt from transportation concurrency requirements. The bill imposed certain obligations upon such cities and counties.

After the bill became law a coalition of cities and counties filed suit to have SB 360 declared unconstitutional for two reasons: 1) that the bill violated the “single subject” requirement; and 2) that it violated Article VII, Section 18(a), the unfunded mandates provision. The local governments alleged that SB 360 required them to “spend funds or take an action requiring the expenditure of funds” in violation of Article VII, Section 18(a).

The court found the local governments’ single subject claim was rendered moot by operation of the subsequent 2010 legislative session. The court rejected all of the local governments arguments on the mandates count (finding they were inappropriate for disposition on a summary judgment motion because they involved disputed issues of fact) except for one.

The court found the provision in SB 360 which mandates local governments to adopt comprehensive plan amendments and strategies to “support and fund mobility” could require “minimum mandated expenditures statewide by 246 local governments” ranging from “$10,150,944 to $25,625,820.” The court found these amounts to be in excess of the Legislature’s standard for determining whether a mandate is “fiscally insignificant” for purposes of Article VII, Section 18(a). The court concluded the Legislature did not meet any other requirements or exemptions set forth in Article VII, Section 18(a).

SB 360 was declared unconstitutional in its entirety.

There is no word yet on whether anyone plans to appeal.

Rebecca

Rebecca O’Hara
Legislative Director
Florida League of Cities, Inc.

No trees were harmed in the sending of this message, however a large number of electrons were inconvenienced.”
……………………

“From: Susan L. Trevarthen
Sent: Mon 8/30/2010 11:26 AM
To: Roseann Minnet; Stuart Dodd; Birute Ann Clottey; Scot Sasser; Chris Vincent
Cc: Connie Hoffmann; Bud Bentley; Jeff Bowman
Subject: Senate Bill 360 challenge
The Town participated as a plaintiff in the challenge to Senate Bill 360 against the President of the Senate, the Speaker of the House, the Governor and the Secretary of State. As noted in greater detail in the emails below, the circuit court judge granted our motion for summary judgment, on the basis that the law was an improper unfunded mandate under the Florida Constitution, and ordered the law to be expunged or removed from the Laws of Florida. The decision is attached.

It remains to be seen if the defendants will seek appeal, reconsideration, or a stay of the effectiveness of the order. There have been news reports that the senator who sponsored this bill would prefer to just address it in the next legislative session, but the defendants will need to make that decision.

Please do not hesitate to contact me should you have any questions about or wish to discuss this decision. Thanks.

Susan L. Trevarthen, Esq., AICP
Member

Weiss Serota Helfman Pastoriza Cole & Boniske, P.L.”
……………………..
Online today…. Another opinion … Disagreeing with the findings….
………………..
“Impact Property Values: SB 360 Invalidated
By William Hyde & Brian Seymour | August 31, 2010
In 2009, the Florida Legislature passed Senate Bill 360 (“SB 360”), “The Community Renewal Act.” Shortly thereafter, several municipalities and counties, primarily in south Florida, filed suit challenging that law. In a somewhat confusing final summary judgment rendered August 26, 2010, the trial court in Tallahassee, declared SB 360 unconstitutional as a violation of Article VII, § 18(a) of the Florida Constitution, also known as the “unfunded mandate” provision. The court also declared that the “single subject” challenge pursuant to Article III, § 6, of the Florida Constitution was moot by virtue of the enactment of SB 1762 (Ch. 2010-3), and dismissed that claim.
SB 360 exempted developments located in specifically designated areas from transportation concurrency and from the development-of-regional-impact (“DRI”) program. It extended the expiration date of certain development orders and permits for a period of two years, and it contained provisions relating to impact fees, security camera regulation, mediation of intergovernmental disputes, and the elimination of the DRI process..
The final summary judgment appears to be internally inconsistent. The court ordered and adjudged that SB 360 is unconstitutional as a violation of the “unfunded mandate” provisions, even though the court’s reasoning only found that SB 360’s mandated adoption of comprehensive plan amendments and transportation strategies “to support and fund mobility” were impermissible unfunded mandates. The court concluded that the remaining portions of SB 360, including the above-referenced two-year permit extensions, involve genuine issues of material fact which would preclude the granting of summary judgment as to those items. The conclusion that one section of SB 360 is an impermissible “unfunded mandate” is inconsistent with the declaration that the entire statute is unconstitutional on this basis. This appears to violate the well-established principle that a statute will be declared unconstitutional only to the extent necessary, and since the court has not yet determined that the other sections of SB 360 constitute themselves “unfunded mandates,” it would appear that the final summary judgment is only “final” as to the provisions relating to mandated adoption of comprehensive plan amendments and transportation strategies “to support and fund mobility,” and not final as to the other sections. Hopefully, this inconsistency will be raised and addressed in a motion for rehearing and/or clarification of the court’s final summary judgment.
Even if SB 360 is declared unconstitutional as a whole, there still may be hope for those struggling with keeping their projects alive. The 2010 Florida Legislature adopted, and Governor Crist signed into law, Senate Bill 1752, which essentially restated and recodified the provisions of SB 360 regarding the two-year extension of certain development orders or permits. Standing alone SB 1752 does not appear to be vulnerable to the same analysis or argument that was applied by the court in its rulings on SB 360, even if the court subsequently determines (we would suggest incorrectly) that the unconstitutional provisions of SB 360 cannot be severed from the remaining provisions and that the statute, as a whole, is unconstitutional; or if the state allows the ruling to stand.”

http://boardroombrief.com/theblog/2010/08/31/court-ruling-could-impact-property-values-sb-360-invalidated/

more to come….

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