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Here’s The Scoop….What’s The Game Plan?…..

May 22, 2009 by Barbara


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…..

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


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)

more to come……

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