Commissioners continue their refusal to compromise.


Below is the latest settlement offer that was sent to the City in an attempt to end the litigation and begin redevelopment. It was not a surprise that the City’s Commissioners refused to retain a consultant to clarify the language in the plan drafted by SOLV’s attorney. They like it just the way it is. Benefits to the large hotels, sticking the residents with the bill for redevelopment.

Tellingly, the mayor’s comment stands out for its inaccurate representation of the offer saying it required a rewrite of the plan. The citizens’ offer consisted of having the City retain a consultant to clarify the language in the plan so that the plan actually included terms that the City and SOLV told the residents they were getting when the voted on the plan. The judge wasn’t fooled by their deceptive ballot language. After he read what was actually in the plan he ruled all four of the ballot summaries deceptive and misleading and ruled that all of the ordinances were void ab initio. That means they never existed. Still, the commission wants to make sure that no one changes the plan put in place by the hotels. Apparently, they like the deception just fine.

Here’s the offer. You make up your mind and let the commission know what you think.

To the City:

In accordance with our prior discussions this letter sets out the basic framework for a proposed settlement of the Anderson case dealing with the City’s comprehensive plan. As you know there are an additional 3500 units or so which have been aggregated from throughout the city and allocated to hotel redevelopment. In its plan, the city has relied on infrastructure studies that were done over 10 years ago and were based on density spread throughout the city. Because of the fact that the density is now concentrated along Gulf Boulevard there is a very real risk that the costs of any new infrastructure will result on increased taxes imposed on the residents. My clients recognize that the City and the hotel owners have stated that this allocation of tax burden was not intended and the City has offered to retain a consultant to ensure that does not occur. We wholeheartedly agree with that suggestion.

To that end, I was referred to Charles Gauthier of Morris Depew to inquire whether he would be interested in assisting in this matter. Please see his letter to me and resume indicating his interest. Note that he is familiar with the City’s plan and was, in fact, retained by the City as an expert in earlier litigation. He has come highly recommended and we would certainly welcome his participation if the City would agree to retain him.

There are other issues to clarify as well. They include many of the items which were included in my January 11, 2011 letter (attached) in response to Commissioner Shavlan’s request to understand my clients’ objection to the plan. The letter, as you know, was discussed in a shade meeting but never in a public meeting.

1) Beach access is not necessarily required for buildings of 146 feet. A height increase to 146 feet is permitted if the new construction exceeds 67% of floor area of the actual buildings being constructed. (Page 76) However, beach access is only required for 3 acre parcels and then only if new construction that exceeds 67% of the buildable lot, i.e the entire site.(Page 74) While it is a small difference in wording it has enormous impact. For example, a 3 acre lot would require beach access only if new construction exceeds 2.01 acres. This would only happen if the entire site is demolished. The Plan should have been written to require beach access in exchange for any increased height. Instead, it was intentionally written to limit beach access.

2) There are no increased front or side yard setbacks for the Large Resort District where the SOLV hotels are located. There are increased setbacks for other districts but not the large hotel district.

3) The CRA funding may have the effect of draining increased ad valorem taxes from increased value of redevelopment from the tax base. The CRA funding by the county only applies if there are matching funds from the City. Those matching funds from the City come entirely from the ad valorem taxes that the City would otherwise collect and use for the entire City. Those matching ad valorem taxes must be used strictly in the CRA and for limited purposes. In essence, the CRA reduces the taxes that the City can use to offset infrastructure costs related to the redevelopment of the City. All of the increase in ad valorem taxes that result from the increase in the value of the large hotels and everything else in the CRA must go into the trust fund and not to the City. Then those taxes which go into the trust fund can only be used for very specific projects in the CRA, not the rest of the City. So, the CRA takes all of that extra revenue from increased value of the hotels away from the city government and it can only be used for the rest of the City.

4) Owners of property whose density was reallocated were never notified of the fact that their property was rezoned. Property owners on the east side of Gulf Boulevard had their density and transient hotel use allocated to other property owners without receiving the proper notice of rezoning. They may be able to sue the City for taking away their property rights, zoning classification and density, and giving it to the large hotels. The Commission should request a written legal opinion on this issue to protect the Commission and the City from future litigation from the hotels and property owners on both sides of Gulf Blvd.

5) Businesses on the west side of Gulf Blvd. will have to be part of the SOLV hotels’ mixed use development. All of the commercial uses on the west side of Gulf Blvd in the CRA are required to be part of a mixed use project, meaning part of a hotel. Small business owners  will not be able to buy and develop on their own and will have to rent from the large hotels.

6) The Plan grandfathers large hotels but makes small hotels non conforming. It appears that  the plan took the density from properties on the east side of Gulf Boulevard, gave it to the large hotels across the street and, in the process, and made some of those properties from which the density was taken non conforming. This should be addressed.

7) Casino gambling. Now that the Legislature is considering a casino gambling bill, my clients would like the residents to have some protection against the redevelopment being used to support casinos. While we recognize this may be a small risk, it can easily be resolved by including language in the plan to prohibit casino development.

Most of the above issues were included as part of the ballot language by the City and SOLV. Based on the commission’s conclusion that the voters knew what they were voting on, it seems only fair for the commission to guarantee the residents that the plan includes the items there were set out it the ballot language. We believe that Mr. Gauthier can also assist in resolving these seven items, which are, of course, subject to discussion and compromise at a public workshop.

In exchange, Count 2 of the Anderson complaint would be dismissed. That would permit the City to move forward under the Plan which was adopted last year and modified in accordance with compromises on the issues set out above.

As you know, it is my opinion that the plan adopted in 2011 is invalid and that the City is currently operating under the “1998 Plan”. I know you disagree. Thus, we believe that this offer is a very significant compromise of my clients’ position. It would permit the City to begin redevelopment despite the fact that there are serious concerns about the validity of the repeal of the charter amendments and would eliminate the claim that the plan was not validly adopted. Count 1 has nothing whatsoever to do with the adoption of the Plan and can be handled at a very short hearing which can be set without further discovery.

Even if we are unable to reach a compromise, we hope that the City consider retainingMr. Gauthier to assist in clarifying the language regarding infrastructure costs.

Posted in St. Pete Beach Litigation | Leave a comment

It’s Deja Vu all over again: Commissioners refuse to settle…again!


I’ve been amazed and gratified at how many of you have been tuning in to listen to a different perspective of what’s happening in St. Pete Beach. For years, the truth has been suspended by the powers that be in City Hall. I wonder if  the political pressure behind the scenes finally managed to force Karl Holley to resign. I believe that Karl is an honest man and I respect him and his decision. When an honest man finds it necessary to resign from a well paid highly visible and respectable job of authority it’s a flashing red warning light. Something is wrong in City Hall. But any of you who have been watching already know that.

One of the real questions behind all of the litigation is why your elected officials choose to deliberate and discuss matters of public concern in secret shade meetings. Why don’t they believe that the public is entitled to hear their opinions? One of the problems, I believe, is that shade meetings and secret discussions have become a habit in the City. There have never been any public discussions about this litigation. NEVER. But that’s a discussion for another day.

Keep doing what you’ve always done and you’ll keep getting what you’ve always got.

The city manager never fails to remind us and the Times that the City has spent “over a million dollars” on litigation, yet, as we saw last week, your elected Commissioners continue to follow the same path they have pursued for years…never discuss settlement offers in public and never accept any offers…just keep paying the lawyers and blame the citizens.

In case you weren’t aware,  over the last few weeks, we have attempted to resolve one of the two remaining cases with the City. The only issue in that case is the amount of costs to which my client is legally entitled for winning his case.  The estimate of actual costs which were actually paid throughout the litigation ranges from $15-20,000. During the negotiations we offered to settle the litigation for $14,000 and, in addition, to dismiss the appeal of his case and to dismiss all pending motions for attorneys fees and sanctions. Last week, after an hour and a half shade meeting in which your elected official discussed the settlement and decided to reject it,  the Commissioners announced the rejection of the offer at a 2 minute public meeting without any comment or discussion. They did announce a counter offer (discussed below) which was not discussed in public.

In response, we have now offered to resolve the litigation for $12,000, which is exactly what the City’s attorneys offered in the negotiation, subject to commission approval. Our offer is subject to it being discussed and voted on in public. Do any of you think that will really happen? I don’t.

You may recall my previous post: History of Citizen Settlement Offers to the City

In that post, I discussed the fact that two years ago, the Commission refused to settle all of the litigation after both SOLV and the citizens submitted a signed settlement agreement. The Commission never explained in public why they rejected that settlement. An appellate court ruling will be out in the next few months to determine if their refusal to discuss offers in public violated the Sunshine Law. Now, after two years and spending a half million dollars on litigation in which the court ruled against the City, the Commission is in exactly the same situation again, still blaming the citizens for the cost of the legal fees…yet, the commissioners continue to refuse to vote on the current offer or even discuss why they oppose it in public.

The offer is very simple and I’ve suggested a cost/benefit analysis.

The City can settle for $12,000 or pay at least $20-40,000 PLUS costs which could be another $15-20,000.  Sounds like a no-brainer…

1) There is an appeal still pending in which the City will eventually have to respond to our motion or brief.  So far, the Kadoura appeal has cost the City almost $40,000. The last time the city filed a brief, it cost the city over $20,000. So, factor in at least another $20,000 for legal fees to respond to the appeal.

2) There are pending motions for attorney fees and sanctions which will require a minimum of two days of hearings which are now set for next Spring. So far, the city has spent over $15,000 in legal fees on preparing for those hearings. Plus there are fees have been incurred since the last billing cycle but not billed yet. Estimate of cost to defend the motions, at least $10,000.

3) Finally, if there is no agreement on the $12,000 reimbursement of costs, then there will be a hearing on the amount of costs. The last time the City was requested to review costs of prior litigation, the legal fees just to review the costs exceeded $5,000 and that didn’t include a hearing on costs. Estimate of costs to defend hearing on costs. $8,000.

Add it up: The City will absolutely have to pay almost $40,000 PLUS costs awarded by the court.  Even if you assume my estimates are off, taking only 50% of my estimate is $20,000 PLUS COSTS. My estimate of costs is $15-20,000. If you take the low end and cut it in half its’ about $8,000. So, if the commissioners don’t  settle the case for $12,000 the taxpayers will end up paying at the very very least $28,000 and more likely more than $40,000.

Now, I ask you, would Mr. Shavlan, or any other commissioner run his or her business this way? Of course, not…but they’re not gambling with their money, they’re playing with “funny money”, your money, the taxpayers’ money. And then they’ll say it’s the citizens’ fault that they have to raise your taxes because of legal fees.

For many years I managed and settled hundreds of millions of dollars of litigation for Fortune 500 companies. Did I like settling cases for more or less than I thought was owed? Of course not, but that is what compromise is all about. Settling. It’s a business decision, not an emotional decision. And so is this one. My client is willing to accept less than he is legally entitled to in exchange for resolving the litigation. And so should the City…but it won’t.

It appears that your commissioners are less concerned with how much of your money they spend not to settle, than arriving at a compromise.

Your elected Commissioners just added $100,000 to the legal budget and raised your taxes and blamed my clients and me. If they refuse this offer, they’re going to spend half of that tax increase. Who are they going to blame next year when this litigation continues?

Below is the email correspondence with the City attorneys  regarding the proposed settlement offer and their response (read from bottom up):

Mike,

Yes, I am aware that the city made the offer in public. In my opinion (and that of the Sunshine Law Handbook), however, when the Commission came out of  an hour and a half meeting and made a motion to reject our offer with not one word of discussion that is a violation of the Sunshine Law. It is exactly what the Kadoura Sunshine Law case is about. So, if we can’t start compromising, I’ll amend the complaint, add that count, and we’ll see what the appellate court has to say in the Kadoura sunshine case. If they reverse the Kadoura case, then it’s just another in a continuing series of Sunshine Law violations and more attorneys fees for the city to pay. If they don’t, then I guess the city can get away with deliberating in shade meetings.

I did consult other experts in the Sunshine Law field before rejecting the offer to settle the Kadoura case. Their opinion coincided with mine, and that is that there is a substantial likelihood of a reversal. Nothing is ever certain as we both know…but there are continuing risks to the city for acting in the shade. My guess is that the legal fees paid by the taxpayers in that case exceeded $40K. If the case is reversed, that could be the amount paid by the City as attorney fees.

With that said, we are firm in our decision that the Kadoura Sunshine Case will not be settled even by a payment of fees. There is no more work to be done by either party. It’s up to the appellate court and if we win, we will get court ordered fees. If not, then we are not entitled to any fees and we won’t accept any.

Furthermore, at this point in time, there should be no further need for additional shade meetings. If we settle Kadoura, then Anderson is merely about compromises to the plan and that should be done in public. By now, all the commissioners are fully versed in the issues. It’s time for them to discuss their positions in public, whatever those positions may be. Then, they will be on record when the litigation is over.

Rather than focusing on this, however, I would hope that the city accept the offer to resolve Kadoura and move on to settlement discussions in Anderson. The Kadoura offer on the table is our final offer, which by the way, was the exact offer made bythe City in its negotiations with Mr. Weber (subject, of course, to commission approval).  If the city cannot agree to a very simple cost benefit analysis of that issue and come to a compromise on Kadoura, why should we expect that the Commission will compromise on much more difficult and complex issues as the comp plan.

You and I both know that the City could never get out of the Kadoura case for less than $12K. First, I’ll be filing a motion to dismiss the appeal as moot. When the city accepted the offer to settle Pyle, it agreed that Ordinance 2008-10 was void ab initio. The Kadoura judgment incorporated the Pyle judgment and therefore 2008-15 is also void ab initio. That is the only remedy that we requested in the Kadoura case so the appeal is now moot. I know the city will probably challenge that motion at a cost that will probably exceed the $12K now on the table that would resolve that issue. Rejecting the offer makes no fiscal or negotiating sense. It is merely the commission playing a zero sum game. If Kadoura gets paid, we lose. If he doesn’t, we win. That is not how compromises are achieved.

By the time the City pays your firm to defend the costs at a hearing and file a response to the motion to dismiss there is no chance that the city will pay less overall…and a real chance that the costs award and fees to defend will exceed $30K. This is a fair deal to all concerned.

I do not doubt that you and Suzanne understand that, however, there are some commissioners that will never agree to anything, regardless of what is is on the table. Everyone in the city knows who they are even if they choose not to make their deliberations public and limit their comments to secret meetings.

Mr. Shavlan somehow believes that paying Mr. Kadoura his costs to which he is legally entitled is somehow “funding the Anderson litigation”. That’s ridiculous and merely shows the level of spite which plagues the decisions made by the commissioners. I have check for $5000 from the National Freedom of Information Coalition grant which has been in my drawer for 3 months and has not even been cashed. The grant is amendable for more funding if necessary. The problem is that the commission thinks my clients and I are in it for money because that is how they see the world and that’s why they made the $30K offer. There are many  residents of the City who don’t care about how much money they have but we are willing to fight for principle. This is not about the money. There are, however, costs and legal fees to which my clients are legally entitled. We will collect those, sooner or later. The only question now is how much of the taxpayers’ money the commission is willing to throw away putting off the inevitable.

Commissioner Parent asked Mr. Kadoura for some good faith action to show we are interested in settling the litigation. We dismissed two cases immediately without anything in return. We have offered to resolve the entire Kadoura litigation for less than our good faith estimated costs…yet the city still refuses. What has the city shown as good faith in return? Nothing, except the persistent negative rhetoric that has stopped negotiations before they could ever get started.

I hope that you remind the Commission that two years ago they were in the same position to settle the litigation when SOLV and the citizens put an offer on the table and they refused it…in a shade meeting. Now, having spent another half million dollars, they are in exactly the same place as they were two years ago. If they continue to refuse to compromise, the City will be in the same situation in another two years bemoaning the fact that they spent even more money.

Compromise is not about getting what you want, it’s about splitting the difference to resolve difficult, complex, and emotionally charged issues.

I would greatly appreciate your support and Suzanne’s in attempting to get past this initial roadblock so we can move on to resolving the issues in the plan. Cooler heads need to prevail. I am hoping that you two can help all of us move forward.

Thank you.

Regards,

Ken

On 11/4/11 8:57 AM, “Mike Davis”  wrote:

Ken are you aware that the settlement proposal we made to you was approved by  the commission in an open session after the shade meeting and was not approved  in the closed portion of the meeting?

Michael S. Davis

—– Original Message —–

> Sent: Thu Nov 03 16:10:52 2011

> Subject: Settlement proposal

Mike,

In order to attempt to resolve  litigation and move things forward Mr. Kadoura is willing to settle the litigation if the City and SOLV reimburse him $12,000 for actual costs which he paid as a result of the litigation (and which is less than the costs which he actually incurred) if all parties agree to the dismissal of the Kadoura appeal and dismiss all claims for costs and fees, as well as dismissal of the public records challenge.  In addition, each party will withdraw all pending motions for attorney’s fees and sanctions.

This offer is conditioned on the City agreeing to place this settlement proposal on the agenda for the Commission meeting on Tuesday, November 8,2011, and to discuss the settlement and accept public comments, if any. If the city votes to accept the settlement proposal, the parties will execute the stipulations agreed on.

If the Commission does not place this on the agenda for the Tuesday meeting and  have a discussion of the offer (which does not mean it must be approved), then the litigation will continue.

Over the past three years my clients have made a number of offers to the city, none of which have ever been discussed publicly. It is only fair to the citizens that their elected official publicly discuss their opinions (whatever they may be) regarding this settlement proposal. This offer is made with the good faith intention of moving the process forward and I can represent on behalf of Mr. Anderson and myself, that we will then make every  effort to resolve the other outstanding litigation.

This offer expires if the proposed offer is not placed on the agenda and discussed with permitted public comments at the meeting

Ken

Posted in St. Pete Beach Litigation | 1 Comment

City attorneys’ costs result from failure to enforce retainer agreement


Here is my response to Mayor McFarlin’s letter (which is below):

Mayor McFarlin, 

Thank you for your email regarding legal costs incurred by the taxpayers. First, as I told you in my email yesterday, because of the litigation and ethical requirements, I feel constrained not to contact any city official without consent of the city’s lawyers. Since the city’s lawyers have given consent to this communication I will limit comments to the issues raised your email.

You first raise the issue regarding the “plaintiffs’ in the lawsuits against the city. Please be assured that there are quite a few voters who are unhappy with the City who contact me on a regular basis. As for the election, in fact, I had no idea that the election date had changed until I was called by concerned citizens.

With respect to the election date change, as for the relative merits of moving it to a party’s primary, you must admit that it does appear a bit partisan, even if that was not intended.  The concern of the public was compliance with the law.

It seems to me, however, that the main purpose of your letter was to ask why I involved the City’s law firm in the issue which caused the City to incur legal costs . According to the City’s retainer agreement with Bryant Miller Olive (attached) it should not cost the city anything. My reading of paragraph 4 requires the City attorney to respond to general questions regarding city meetings and drafting ordinances as part of the monthly retainer. (see example of charges for reviewing ordinances for meeting)Review ordinances for commission meeting CITY ATTORNEY INVOICE Dec 2010 If the City is billed for that time, then it is up to the city to enforce the agreement. It is no secret that citizens have objected to the bills submitted by Bryant Miller Olive over the past three years. One of the issues raised was the fact that the City attorneys have billed for time spent with Mike Bonfield and the Commissioners even though it appears to be covered under the retainer.

I have attached an annotated version of the retainer agreement with the City’s law firm.City Attorney Retainer Agreement This should help you and the commission to resolve certain billing issues related to the election question posed below.

CITY shall pay FIRM for services of ATTORNEY the sum of five thousand dollars ($5,000.00) per month, as a fixed retainer fee, payable on or before the 15th day of each month throughout the term hereof, unless otherwise agreed by the parties. Except as provided below, the retainer fee shall compensate for all of the usual duties of the City ATTORNEY, including without limitation, attendance at, and preparation for, all meetings outlined in Section 3 above, review of documents presented for action by the City Commission, review of proposed resolutions, phone conferences with City staff or Commissioners concerning matters to be brought before the City Commission for action, review and preparation of proposed ordinances, review and preparation of contracts or other documents, all professional services work performed to address legal questions propounded by City staff, City Commissioners, or the City Commission, and legal research associated with any of the foregoing.

Furthermore, the attorneys are only to be reimbursed for “out of pocket” expenses (paragraph 6). As a businessman, I would venture to say that if you hired someone to do a job and paid him an hourly wage plus “out of pocket expenses”, you would require out of pocket expenses to be “actual” expenses, would you not?  The City was originally charged .$25 for long distance “units” which was then raised to $.33 per “Unit”. Also, the charge for copies is $.25. When my client asked me to ask the city’s attorney about the actual costs for those services by providing contracts for phone and copy services, the firm refused to provide them. If you note, the City is also charged for interoffice conference calls as well. So, when attorneys in Tampa talk with attorneys in Orlando or wherever, the City gets the phone bill for it. I don’t know about your phone service, but I can make a three or four way call from my home at no extra charge. See attached example. Conference call charges 11-07 City attorney bill for July 2011

Furthermore, Maria Urban delivered a petition signed by over 100 citizens asking the commission to audit the firm’s legal bills. Although I didn’t see the meeting, I understand that you did not even permit her to finish her statement. So far, the City has ignored the citizens’ comments and has chosen just to pay the bills without question. Then, the Commissioners blame me and my clients for increasing the City’s taxes because of increased legal costs, when in reality, an audit of the firm  as requested by the citizens might easily cover the $10,000 in election expenses and maybe more.

The examples provided are only samples. There are more similar charges, but I think this covers the main topic of your question, which is that it appears that under the city’s retainer agreement all work performed to prepare ordinances or other documentation for city meetings is covered by the retainer. The citizens have done what they could. Now, it is up to the Commissioners and the City manager to  require the city attorneys billing to comply with the Retainer Agreement.

Thank you for your time,

Here is Mayor McFarlin’s letter to me:

Mr. Weiss,

          In regards to your e-mail dated October 17th,2011 addressed to our City Attorneys concerning the change of election date, I am left with an unanswered question.
In exactly what capacity are you speaking?  You make no inference that your concerns are that of a client, you are not a resident and if we all are to follow protocol, why would you not bring this concern or allegation direct to the Commission for us to address?  By you taking the liberty of involving our law firm and circumventing the City Commission, our legal costs continue to escalate without our consent or direct control.  If my memory serves me correctly, it was you who has publicly objected to our
City’s legal costs but yet you continue to directly initiate them.  Quite the dilemma, wouldn’t you agree?  If your concerns were presented by you or one of plaintiffs at a City Commission meeting under normal procedures, we could have addressed this issue accordingly on the spot with our City Attorney present. Instead your actions infer that you hold some type of empowerment that allows you to bypass normal protocol which is a costly and  unnecessary endeavor for our taxpayers.

                                So again I ask the question, with no client mentioned, in exactly what capacity are you speaking?

            Now I realize that you might reply with a named plaintiff that you conveniently draw from your pool, but please forthcoming and honest. Quite frankly your continued rotation of willing participants has become an old act in this City. In reality, it should be an attorney representing a client’s views, not the opposite.

As far as the change of the election date, I’m not familiar with any political party spin being associated with this change.  The reason I supported this change was very simple and in my mind in the best interest of all the residents.  We will save close to $10,000 ,  also the date of January 31st would be at our peak time as far as seasonal residents being present and we would have a better turnout if piggy-backed with the national election. I  realize this is no legal argument to your position, but my understanding is that the Commission does in fact have the power to make this change. Keeping in mind this is a non-partisan election, I see no political party bias whatsoever. My reasons in supporting this change are as previously stated, period.

              In closing I would ask that you consider following protocol on any other issues you feel the need to critique in our City. Litigation of record certainly be handled appropriately but I don’t feel this issue would be considered ongoing litigation.       

STEVE  McFARLIN

Mayor of St. Pete Beach, Florida

Posted in St. Pete Beach Litigation | Leave a comment

Using taxpayer money to pay city lawyers to defend their own actions. If that’s not illegal, maybe it should be.


Sanctions, what are they and what are the issues in St. Pete Beach? And why is the City using taxpayer dollars to pay the city lawyers to defend themselves from sanctions for the attorneys’ conduct? What public purpose is being served? Are there restrictions on how elected officials can use taxpayer money? Or, can elected officials merely rely on an attorney’s opinion to justify the expense?

Sanctions are imposed to prevent lawyers from misrepresenting the law to the court and to prevent clients from misrepresenting facts to the court. They are sometimes referred to as sanctions for “frivolous” pleadings or lawsuits. While the Commissioners routinely accuse me and my clients of filing frivolous lawsuits, the City attorneys have admitted in shade meetings, that there is no evidence that I have filed any frivolous or sanctionable claims.

City Attorney Susan Churuti: but we didn’t file any of these 57.105 motions. Why didn’t we do that? Two reasons; one, because we don’t think that any of the issues that were raised by the other side crossed that threshold of being completely spurious. And that’s borne out by at least as to some of them by the fact that Judge Demers is troubled by some of the issues that has been raised by the other side. And the second thing is, if we file a 57.105 motion on your behalf without a valid basis, then the other side can file one against you and against us for having filed it. And it can backfire on you.

November 8, 2009 Shade meeting transcript pages 17-18

There are, however, motions for sanctions that have been filed against the City attorneys. The City attorneys, Suzanne Van Wyk, Susan Churuti, Mike Davis, and others from the law firm of Bryant Miller Olive have billed the City, i.e. the taxpayers,  for defending those motions.

The motions for sanctions were filed only after the City’s attorneys failed to withdraw the allegedly misleading statements after being given an opportunity to withdraw them (as required by law). If the court determines that the statements were misleading and that there was no basis to make those representations, the court will impose sanctions which include reimbursing the opposing side for the attorneys’ fees incurred to defend the frivolous pleadings.

On many, many occasions I have clearly advised the City’s attorneys that the motions are not directed at the City attorneys, yet they told the City Commission on June 14, 2011 that the motions were directed at the City as well and if the motion was granted the City would have to split the sanctions “50-50″.

MR. SHAVLAN: Does this mean we have to pay attorney’s fees?

MR. DAVIS: Yeah. That’s what they’re after. We don’t think they’re going to prevail on that.  Nobody issues a warranty. But, you know — do you agree, Suzanne?

MS. VAN WYK: Yes, I do. Of course, we are defending that Motion for Sanctions against the City and its attorneys. So we’re — the motion is not just against your attorney, it’s against the City as well.

***

CITY MANAGER BONFIELD: Does Weiss — Weiss filed a Motion for Sanctions in the Pyle case?

MS. VAN WYK: Yes, in the Pyle case9. And the motion is directed at the City and its attorneys both. It’s requesting sanctions from both, which usually means, if it’s awarded, if we have to split it, we pay half, you pay half.

***

MR. BONFIELD: No. But the fact that — that’s what he said. But what you’re saying is that, no, they filed them against both of us and there’s no case where they filed them just against you and not us.

MS. VAN WYK: I can only speak to this one right now. And this one is filed against the City and its attorneys.

MR. BONFIELD: So you’re not aware of any others that –

MR. DAVIS: No, I’m not.

MR. BONFIELD: — are filed against you and not us?

MR. DAVIS: No. There are none that were just against the attorneys.   Shade meeting transcript June 14, 2011 pages 13, and  50-52.

Finally, last week, I wrote another letter explaining for the umpteenth time that the sanctions were only against the City’s attorneys and the law firm.

Ladies/Gentlemen,

Since there appears to be a misunderstanding on behalf of your law firm regarding the sanction hearings pending on November 4. I want to be completely and unequivocally clear that all scheduled sanctions are asserted ONLY against your law firm and NOT against the city. As you know, members of your law firm have advised the city commission that the sanctions are sought from the City, your client and your law firm. I have repeatedly stated otherwise, both in correspondence and in pleadings.

As I have advised you on numerous occasions (and as you should agree for obvious reasons) §57.105(3)(c) does not permit the court to impose sanctions on a represented client, meaning the City of St. Pete Beach as a result of the violation of  §57.105(1)(b) Would not be supported by the application of then-­‐‑existing law to those material facts.

Therefore, in order to avoid further misunderstandings, I suggest that we enter into a stipulation to that effect, i.e. that the motions for sanctions are only asserted against the law firm and not against the City.

As I have repeatedly stated, it is not the intention of my clients to seek reimbursement via sanctions from the taxpayers for alleged misrepresentations made by law your firm to the courts.

Please advise what other terms you would like to include in that stipulation…or if you prefer, you can draft it.

Barring a stipulation, I will file a motion to clarify the issue with the court prior to the scheduled hearings.

After providing yet another lawyer from Bryant Miller Olive’s Orlando office (more travel time billed to the City at $205 an hour?), with details of the sanctions and sending two more requests to agree that there are no sanctions requested against the firm’s client, i.e. the City and its taxpayers, there has been no response. 

And the City attorneys have billed the City and its taxpayers thousands of dollars for defending those motions with the City manager and Commissioners agreeing to those charges and paying them. Will the Commission also pay any sanctions imposed as well?

One commissioner seemed to think that the motions were against moth the City and the attorneys because some of the motions named the City. That is correct, however, by law which recently changed, the City cannot be sanctioned and that issue has been addressed on numerous occasions with the City attorneys. the law now provides that the client can’t be sanctioned for misrepresentation of law made by the client’s lawyer.

Of course, one commissioner also argues that it would be unfair for the City attorneys to have to defend themselves against “frivolous” motions for sanctions. Not true. If any motion for sanctions was “frivolous” then the City attorneys could have filed a motion for sanctions for that motion….and, in fact, that is what my clients have done against the City.

The City (and SOLV) filed a motion for sanctions against my client for failing to appear at a court ordered mediation. Since that is clearly not true based on the facts and the court order at issue, I filed a motion for sanctions against the City and SOLV for filing the frivolous motion for sanctions.

But I think everyone gets the point. The Commission is using taxpayer dollars to defend their lawyers from claims resulting from their lawyers’ conduct. If that isn’t illegal, then maybe it should be. And then they try to divert the blame to my clients and to me because of their increased legal costs.

What do you think?

What public purpose is being served? Should there restrictions on how elected officials should be able to use taxpayer money?

Or, can elected officials merely rely on an attorney’s opinion to spend and tax?

And what if the city attorney’s opinion was wrong? Who pays? More on that soon.

I believe that these are the correct emails for your commissioners.

j.parent@stpetebeach.org;

b.garnett@stpetebeach.org;

s.mcfarlin@stpetebeach.org

m.shavlan@st.petebeach.org

a.halpern@stpetebeach.org

If not, here’s the page to email them…and please let me know so I can correct them.

http://www.stpetebeach.org/city-commisson.html

Posted in St. Pete Beach Litigation | Leave a comment

History of Citizen Settlement Offers to the City of St. Pete Beach-Part 1


“Truth is so effective, it’s surprising it’s not used more often.”

I saw that homily on the wall of a corporate hot shot who found truth-telling impossible when predicting his annual results…but all of us liked him because he was a lot of fun and a great guy. Look up the definition of politician and you might find a picture of Tommy.

Recently, Bruce Kadoura and Commissioner Parent opened informal and unofficial discussions to attempt to resolve the litigation in the City. St. Pete Times Oct. 5, 2011. This is a good start and, hopefully, any proposals which arise will be aired publicly in an open forum. Other settlement proposals put on the table by the Citizens were never discussed in public.

Unfortunately, my clients have consistently been accused of not acting in good faith as reflected in the above Times article: “”Please forgive my skepticism, but they don’t act in good faith,” said Commissioner Bev Garnett. In another setting after the Citizens had proposed yet another settlement offer, Commissioner Garnett accused the Citizens of wanting to “hang out the white flag and try to act like the white knight. That’s their MO.” January 11, 2011 shade meeting transcript with annotations page 38.

Since Truth is our main concern, it might be helpful to post a history of the Citizens’ efforts to settle the City/SOLV redevelopment litigation along with documentation. It is a rather long story, so I’ve tried to break it down into three sections, the October 2009 mediation, the November 2009 Citizen offers and City counter offers, and the May 2010 Citizen offers. As it turns out, this story is a lot longer than I anticipated, so there is a lot to read and the May 2010 Citizens offers will be discussed in a later post…but all of this is TRUE and the facts and documents are included to prove it.

I.  The Mediation. In September 2009, the Citizens suggested that the parties attempt to resolve the matter through the mediation process. A mediator can only suggest compromise solutions and has no authority to require the parties to do anything. The mediation was scheduled for October 9, 2009.

All the parties attended including Mayor Finnerty, City Manager Bonfield, Karl Holley, and Catherine Hartley  for the City, Tim Bogott, Deborah Nicklaus, Lorraine Huhn, and others for SOLV and Bruce Kadoura and Bill Pyle for the Citizens. Add lawyers for all sides and you’ve got a rather large entourage of people who had never sat down in the same room together. Tim Bogott and the Trade Winds, graciously and generously provided a beautiful facility and ample meals for all. None of us knew that it was the start of a grueling month-long process. Since mediation is confidential, none of the parties are permitted to discuss what went on,  but to say it was one of the most arduous, tiring, frustrating and blood pressure raising processes most of us have gone through would be an understatement…at least for me.

Everyone from all sides, bar none, worked very long, diligent hours and weeks in an attempt to arrive at a solution. The parties talked among themselves. The lawyers, not accustomed to speaking to each other ( previous communications were done by email or in court), sat down amid conference rooms stocked with Diet Cokes, coffee and other much needed caffeinated concoctions….and talked…for the first time in years.

The process continued. Hours turned into days which turned into weeks. Everyone on all sides worked nights and weekends, talking on Saturday and Sunday morning and evening conference calls, first between lawyers and the clients, then lawyers with the mediator, then with each other. We met again and again, with Tim Bogott continuing to provide (at no cost to anyone) his facility, food, and caffeine. We talked and drafted and argued and compromised for weeks…but, in the end, we just couldn’t arrive at a final agreement. We were all disappointed and frustrated.

Immediately after the mediation was over with the agreement unsigned, City Manager Bonfield, obviously unhappy that no conclusion was reached, blamed the Citizens stating,  I believe we were extremely reasonable in what was being offered but am now convinced more than ever that some of the individuals involved are not interested in moving the city forward”.

This quote is rather important as you will see in Section II, the Citizen Offers.

II. Citizen Offer #1 November 2009:  In early November 2009, immediately after the mediation, the Citizens signed and sent SOLV a settlement agreement which they also signed. The agreement was then sent to the City and would have resolved all of the litigation. The agreement was circulated after the mediation and made public by the City so it was not subject to confidentiality. Because this agreement was a “marked up” copy of the mediation agreement, it’s clear that the main issues in the new settlement agreement included almost the same compromises agreed on by all parties during the mediation:

1) An agreement requiring beach access for virtually all new development in exchange for an increase in height;

2) a timetable for developing an impact fee plan and clarifying the definition of impact fees;

3) a plan for “shadowing” to prevent new development from casting long shadows on surrounding residences and properties;

4) a requirement for side and front setbacks for hotels on Gulf Blvd. Under the SOLV Plan hotels can build pools or tennis courts or other “accessory uses” right up to neighboring lot lines;

5) a Bridge To The Future Committee funded with $30,000 contributed equally by the Citizens, SOLV and the City for the purpose of creating architectural studies and reviewing proposed redevelopment in the City;

In exchange for the above:

1) All of the litigation would have been dismissed; and

2) the SOLV hotels would have been permitted to increase density almost threefold, from 30 units an acre to between 75 and 85 units an acre. SOLV hotels also would have been permitted an increase in height from 50 to 146 feet.

By the way, the main contributors to SOLV were the hotels on the beach and according to public records filed by SOLV include primarily: The Trade Winds Resort (contributions by RIA Hotel Disbursement) The Sirata Beach Resort (contributions also by Nicklaus of Florida), The Postcard Inn (formerly the Travelodge, contributions by Crossgate Partners), The Alden Resort Hotel, The Beachcomber Resort and the Grand Plaza Hotel. SOLV Campaign Report for quarter #2 2008 including $328,000 in contributions before the June 2008 election.

Despite the fact that the agreement contained major concessions by the Citizens, the Commission rejected the signed settlement agreement (and several others) without any public discussion. For the next two weeks offers went back and forth between the City, SOLV and the Citizens but there was never ever one single public hearing discussing the Commission’s rejection of the Citizens’ offers or even talking about the City’s counteroffers.

If you want to see what your Commissioners had to say about the offers, you can take a look at the following shade meeting transcripts. November 6, 2009 Shade Meeting TranscriptNovember 10, 2009 Shade Meeting Transcript;  November 16, 2009 Shade Meeting Transcript; The details of these will be discussed in the future. But, if you read them, you can see my highlighting of some interesting quotes. Remember this is what the Commissioners actually said in secret shade meetings. It is not opinion.

Shade meetings are meetings in which elected officials are allowed to discuss settlement negotiations and litigation expenses in private with their attorney, but no final decisions can be made in those meetings. More on the Sunshine Law in later posts. From my recent brief to the appellate court”

“The overarching purpose of the Sunshine Law is to guarantee the right of citizens to hear their elected representatives debate issues of public interest and to provide a platform for citizens to praise, chide, criticize, or rebuke their elected officials by voicing their own opinions in a public meeting.  In this case, the citizens of St. Pete Beach were denied that right. They were denied the right to hear their commissioners debate the singularly most important issue that has divided the community for six years and that has alienated neighbors and neighborhoods throughout the City at great cost to the public treasury. Would not a public debate have yielded a better result for all concerned?

In these most critical moments, in what should have been a public debate, the Commission acted in secret.  It debated.  It considered. It rejected.  It proposed.  It approved.  It decided.  All of those actions were an attempt by the City’s elected officials to hide their views in the shade of the public meeting exemption.  The Commission made decisions clearly required to be made in the Sunshine and went beyond the scope of permissible shade meeting discussions.

As a result of the secret shade meeting decisions, the following letter was sent to City attorneys Mike Davis and Suzanne Van Wyk . Letter to City demanding release of transcripts Nov 20, 2009 Here are excerpts, the first of which explains why the criticism after the mediation by City Manager Bonfield was unjustified:

“It is a fact that at the end of the mediation, the City Manager publicly criticized my clients for failing to sign the mediation agreement. That agreement, as disclosed by the City, contained the identical language for the Bridge To The Future Committee that the Commission has now rejected. In addition, that agreement contained the requirement that the City pay $30,000 for the committee’s funding, which the City rejected in previous counter offers (and which SOLV and my clients agreed to fund in part). It now appears that even if my clients had signed the original agreement, the City would have refused to do so.

My clients are also cognizant of the fact that even though a number of offers have been made to the City, all of which have been rejected, there has not been one public vote by the commission on any of those offers. The Commission has rejected two offers jointly signed by the other parties to the litigation and has authorized two counter offers to be made, all of which occurred in shade meetings.  We believe that these actions should have been discussed in public and voted on in public.”

***

“The Commissioners’ rejections of the offers and the proposal of counter offers were all done in shade meetings out of the public view and, in contravention, we believe, of the Sunshine Law. The litigation that was the subject of the settlement agreements has cost the City hundreds of thousands of dollars, and the City has even discussed taxing the residents to pay for continued legal fees. The decision whether to accept any of the settlement offers or to make counter offers should have been done in public so that the residents could comment on and be part of the decision making process. The Commissioners should voted in public on these settlement agreements so that they could each be held accountable for their decision to reject the settlement offers submitted by both of the other parties to the litigation. That is the purpose of the Sunshine Law, to provide the public the right to have input on decisions related to the City’s future and to hear their elected representatives discuss the matter and then vote on it in public.

My clients are now requesting that transcripts of all shade meetings (required by with FS §286.011(8)(c)) at which a signed offer was considered or a counter offer was proposed be disclosed to the public. The residents are entitled to know how and why their elected representatives rejected the offers which the other parties to the litigation submitted to their Commissioners. The basic tenet of the Sunshine Law is to provide voters with an absolute right to have their elected representatives make decisions in the public and in the sunshine. In this case that right was ignored.”

Here is the letter in full. You can decide for yourselves whether the Commission made any final decisions.

Here are some excerpts from the City’s response to that letter. When reading the excerpts remember that there was never a public discussion so the only “outcry” Commissioners heard was never in public.

Excerpts from the City attorney’s response:

As you know, although the City’s negotiation team agreed to submit the original proposal to the City Commission (which included only one City Commission appointee), it became clear after public disclosure of the concept that there is considerable opposition from the residents to any effort to tum over primary control of a city committee to two political action committees, or their waning former membership. While you maintain that there is no evidence of such an outcry by persons other than extreme fringe groups, the City Commissioners have heard from numerous City residents who are not associated with either Save Our Little Village or the former Citizens for Responsible Growth.

***

Also, as for the second excerpt, here is a quote from the November 16, 2009 shade meeting transcript (page 83)

MR. BONFIELD: Well, the purpose of the Shade meeting is to – this is our drop dead bottom line. If they don’t accept it there’s nothing more to talk about.

MR. DAVIS: If you’re comfortable with that, then just leave it that way.

MR. FINNERTY: We took a vote.

MR. DAVIS: I understand.

MS. GARNETT: That’s the only way it makes it hard core, drop dead. We’re not going to have another Shade meeting.

Here is another excerpt from the City attorney’s response:

As for your allegations that the City violated the Sunshine Law during its shade meetings to give direction to its attorneys on your clients’ settlement proposals or formulate counter proposals, they are false. Mr. Davis and I both attended each of those meetings; no votes were taken and no actions violated the Sunshine Law.

Here is the City attorney’s response in full:  City Response to Sunshine Letter K. Weiss – 9-20-09

I might also add the City Attorney Susan Churuti’s opinion on shade meeting decisions is included in the City’s brief to the appellate court:

“Such is the nature of the public attorney’s practice: deliberation, discussion and decision must occur in private [shade meeting] sessions.”

And so, the litigation continued. There were more offers which will be discussed in the next post. None of those offers were ever discussed in public either.

Would the settlement offers have been accepted if the Commission had aired them publicly?  What do you think?

If you would like to be notified of future posts you can contact me “HERE”  or you can go to the lower right hand corner of the page

In order to “follow” my blog, please look at the lower right hand corner or at the top of the page and click the “follow” button and enter your email. That way you can get my new posts automatically. It is not a spammer, it just notifies you when I put up another post. I’ll remove you anytime and it won’t be used for anything else…and that’s the TRUTH.

Posted in St. Pete Beach Litigation | 4 Comments

Truth In Government


The goal of Truth In Government is to provide citizens with accurate information about their government and elected officials through verification of public statements and actions by elected officials based on public records. There may be some opinion, but very little, and, when it is opinion, it will be very clearly stated.

Essentially, there is very little Truth In Government. The Sunshine Law (in Florida) and the Public Records law have been constitutionally authorized by the people of Florida. The Sunshine Law requires that all public business be conducted in the “sunshine”, i.e. in public meetings. The Public Records Act requires that all government documents (with a few exceptions) are available to the public. They are intended to safeguard our rights as citizens and if not enforced we risk losing them. Here is the link to the Florida Sunshine Manual and you can also check the First Amendment Foundation for more information.

This site will attempt to shed some light on the litigation in St. Pete Beach and attempt to provide a forum for citizens to discuss the issues related to the City/SOLV comprehensive plan. Since discussions have begun, there is hope that eventually a resolution can be found that works for both citizens and businesses alike.

A good starting point would be to read the letter sent to the City Commission to respond to Commissioner Shavlan’s request for my clients to advise the City about some of the reasons that they were opposed to the City/SOLV plan. The Commission never discussed it in public. Letter explaining issues with City/SOLV comprehensive plan January 11, 2011

You can download it by clicking on the above link or read it here in full. I’ll post the City’s response in the next few days:

Mike Davis

City Attorney St Pete Beach

January 10, 2011

Re: Commissioner Shavlan’s Inquiry About the SOLV Plan

Dear Mike,

First, my clients would like to thank Commissioner Shavlan for asking for their opinion on the SOLV Plan, although the Plan itself is not the issue in the litigation. Frankly, they have never had an opportunity to discuss the problematic issues in the SOLV Plan in public with the Commission. Surely, everyone wants what’s best for the city. The citizens opposed to the SOLV Plan understand the need for the revitalization of the city. My clients just differ on the approach to the redevelopment of the city. They want to be assured that the hotels pay their fair share of the redevelopment costs.

The SOLV Plan is essentially the large hotels’ plan for the city. While we understand that they want to redevelop, it should be done taking into consideration the interests of the residents and taxpayers as well as the large hotels. While tall buildings and density are significant concerns, the increased taxes that will be necessitated and the fact that the residents pay for the infrastructure are the overarching issues.

We recognize that the Commissioners believe that they understand the SOLV Plan. Based on their public comments, particularly Commissioner Shavlan’s email, their knowledge is based on what they have been told about the plan by SOLV, not what is actually in the plan. The fact is that the SOLV plan is a very complex, complicated and, a difficult plan to understand. It was admittedly drafted by SOLV’s lawyers for the benefit of the large hotels, not the residents…and that is understandable, as they have their own interests to protect. It seems, however, that it is the Commissions’ obligation to be responsive to the residents and the small hotel and business owners as well, not just the SOLV hotels.

We have all spent many hours reading and re-reading the plan as I hope the Commissioners have. In the end, our conclusion is that the SOLV Plan is basically a huge windfall for the large hotels at the expense of the residents and taxpayers and the property owners on the east side of Gulf Blvd and elsewhere.  Here’s why.

The main issue of concern to those who oppose the Plan is the fact that the taxpayers will end up paying the costs of the infrastructure required by the large hotels’ redevelopment. The hotels drafted their plan with the specific intent of prohibiting the city from assessing the hotels to pay for infrastructure related to CRD improvements:

“Properties and development located within the boundaries of the CRD [CRA]shall not be assessed or otherwise charged by any local Ordinance, rule, regulation or special taxing district created, adopted or otherwise implemented for the purposes of funding. Community improvements inside the CRD that are intended to be funded by the CI Fund.” See page 64 (iii).

It seems to my clients that it should be exactly the opposite: Make the hotels that benefit pay for the improvements in the CRA .

In addition, there simply will be no impact fees available to pay for infrastructure that results from the large hotels’ redevelopment. That source of funds is eliminated by the SOLV Plan’s inclusion of up to 100% waivers and credits for impact fees which would completely eliminate the purpose of impact fees. SOLV says that waivers and credits are required by law. If so, why do they have to be in the plan? In fact, some of the hotels are already voluntarily taking actions that would qualify for impact fee credits. Why pay them to do something that is already in their business plan and for their own benefit? The SOLV Plan also imposes limits on impact fees and also limits on impact fee increases. How does this protect the residents who pay over 85% of all ad valorem taxes in the City?

So, with impact fee credits and waivers and a prohibition against assessing the large hotel properties, the only way to find the funds to pay for those improvements is raising taxes on the residents. Why would members of the Commission support a plan that places the financial burden of the large hotels’ redevelopment on the residents?  Right now, that appears to be the case. That is our primary concern with the SOLV Plan.

There are other concerns but you have to read the SOLV Plan really carefully to understand that:

1) Beach access is not necessarily required for buildings of 146 feet as claimed by both the Commission and SOLV. A height increase to 146 feet is permitted if the new construction exceeds 67% of floor area of the actual buildings being constructed. (Page 76) However, beach access is only required for 3 acre parcels and then only if new construction that exceeds 67% of the buildable lot, i.e the entire site.(Page 74) While it is a small difference in wording it has enormous impact. For example, a 3 acre lot would require beach access only if new construction exceeds 2.01 acres. This would only happen if the entire site is demolished which is just not going to happen with any of the large hotels whose goal is to expand structures already in the ground. The Plan should have been written to require beach access in exchange for any increased height. Instead, it was intentionally written to limit beach access.

2) There are no increased front or side yard setbacks for the Large Resort District where the SOLV hotels are located. (Pages 75-77) There are increased setbacks for other districts. It appears that SOLV drafted the provision to impose restrictions on other hotels, but specifically not the SOLV hotels. This is the same way SOLV imposed density pools in other districts but not for the Large Resort District. Why not have increased setbacks and a density pool in the Large Resort District as well? Because the SOLV hotels wrote the plan.

3) The $100 million CRA funding advertised by SOLV is nonsense. The Commission may also believe that the CRA provides money for redevelopment. That is what SOLV says, but, if the City were to investigate the facts, it would find that it’s just not true. Even the SOLV hoteliers have admitted that there is little if any money coming to the city for the CRA.

The CRA funding by the county only applies if there are matching funds from the City. Those matching funds from the City come entirely from the ad valorem taxes that the City would otherwise collect and use for the entire City. Those matching ad valorem taxes must be used strictly in CRA and for limited purposes. In essence, the CRA reduces the taxes that the City can use to offset infrastructure costs related to the redevelopment of the City. And even if it does, it comes with a requirement that the City match County funds. And then all of the funding has to be used in the CRA where the SOLV hotels are located.

According to David Walker of the County Planning department, here is the way the CRA funding works. The City transfers into a trust account the City’s ad valorem taxes attributable to any increase in value of properties in the CRA over the value at the time the CRA was created. The County does the same provided the City makes the contribution. There are two problems with this. First, SOLV promised $100 million of CRA funding. That, of course, is virtually impossible. It would require an approximate $50 million contribution by the City. Second, all of the increase in ad valorem taxes that result from the increase in the value of the large hotels and everything else in the CRA must go into the trust fund and not to the City. Then those taxes which go into the trust fund can only be used for very specific projects in the CRA, not the rest of the City. So, the CRA takes all of that extra revenue from increased value of the hotels away from the city government and it can only be used to “pretty up” the hotels property or put underground utilities in, but it can’t be used for the rest of the City. Again, that’s what SOLV intended. Couple that with the prohibition against assessing the CRA properties, and who pays for the infrastructure? The taxpayers.

4) The Bert Harris Act is a time bomb of litigation just waiting to explode. Not only is this a current problem but it also will occur in the future when another commission might decide that areas of the city (other than the large hotel district) could benefit from increased density for another hotel. If the SOLV Plan ever becomes law, we believe that if the Commission tries to reallocate any of the density allocated to large hotels in the Plan, the hotels would file suit against the City, claiming that the SOLV Plan allocated density to them permanently, even if they never use it. You may recall how enraged the SOLV lawyer was when the Commission allocated density to Dolphin Village. The purpose of the SOLV Plan is to take the density from and eliminate hotels on the east side of Gulf Blvd…and it does just that. The SOLV hotels will claim that under the Bert Harris Act, they have a right to the density and that the city cannot reallocate it any other property. This will be more costly litigation for the City….and it can be prevented with a proper plan.

More importantly, property owners on the east side of Gulf Boulevard had their density and transient hotel use illegally taken from them by the SOLV Plan. They also had their property rezoned without proper notice. They may be able to sue the City for taking away their property rights, zoning classification and density, and giving it to the large hotels. The taxpayers are owed a legal opinion in writing on this issue to protect the Commission and the City from future litigation from the hotels and property owners on both sides of Gulf Blvd.

5) Businesses on the west side of Gulf Blvd. will have to be part of the SOLV hotels’ mixed use development. Small business owners are affected as well. In order to run a small business, or any business, on the west side of Gulf Boulevard in the CRA, businesses will have to rent from the large hotels. Businesses won’t be able to buy their own land, build and operate their independent business. Why? The way the SOLV Plan is written, all of the commercial uses on the west side of Gulf Blvd in the CRA is required to be part of a mixed use project. And that means part of a large hotel. Is that good for the small business person or for the City? The net result of the SOLV plan gives economic control of a significant portion of St. Pete Beach to the  large hotels.

6) The Plan grandfathers large hotels but makes small hotels non conforming. The large hotels claim that they can’t rebuild in the event of a hurricane because they are non conforming. I wonder, however, if the Commission realizes that City officials testified that the density transferred to the large hotels under the Plan came from other property owners in the City. In fact, the plan took the density from properties on the east side of Gulf Boulevard, gave it to the large hotels across the street and, in the process, and made some of those properties from which the density was taken non conforming. Is that fair to those property owners, to make the large hotels conforming but make other properties non conforming? The SOLV plan eliminates all transient accommodation across the street from the large hotels.  This would have the effect of wiping out their competition.  As this can only increase their business and profits, it would clearly seem to be intentional.

7) The minimal density “reduction” is really a concentration of density in one mile of the beach. By taking 3500 units (away from other property owners) from an area of 248 acres the SOLV Plan concentrates it in less than 80 acres. It’s common sense that concentrating density along a mile of beach has a different effect on traffic and other infrastructure than the prior allocation. For example, water and sewer systems that were originally designed to service those 3500 units across 248 acres throughout the city must now be modified to move all the water and sewage to a narrow band of land in the large hotel district. New infrastructure will be required. Who pays? The taxpayers.

The question now is whether the city is going to move forward with a redevelopment plan that is in accord with the law and in the interest of all taxpayers, not just the large hotels’ interest. What do the City or the residents get from the redevelopment of the large hotels? Not bed tax, that goes to the County, not impact fees, hotels get credits and waivers, not ad valorem taxes, that goes directly into the CRA. Please tell us, how do the residents benefit?

SOLV and their Plan not only deceived the voters with the ballot summaries, they deceived the members of the Commission who support it. Now that the judge has invalidated the election, it is a false assertion that the voters approved the plan. The election was invalid there is no vote for the Commission to rely on.

My clients have asked that I not focus on the issue of height  in this response, but they invite any member of the Commission to visit the Silver Sands Condominium and understand how the proposed redevelopment (visual attached) of the former Travelodge property (now the Postcard Inn) would affect the 300 owners and taxpayers who live here.   For example, there is insufficient buffering as there is a proposed open multi-story parking garage immediately adjacent. The three massive buildings would keep much of Silver Sands – including the south pool – shaded much of the day.

We believe everything stated about the plan is factual. If you believe otherwise, we are certainly willing to listen. We believe, as we always have, that a reasonable discussion might provide some perspective for all concerned. It also seems that it’s time for the   large hotels to compromise and include in a plan a requirement that they pay their fair share of the costs of redevelopment and give something back to the City in exchange for the huge profits they intend to make. If the Commission believes that there is room to negotiate a change in the allocation of impact fees, to impose a requirement on the large hotels to redevelop by paying the costs of redevelopment and to modify other components of the plan perhaps further settlement discussions would be helpful.

Sincerely,

Kenneth L. Weiss

I’ll post the City’s response in the next few days.

Posted in St. Pete Beach Litigation | 1 Comment