Tequesta Notes
a citizens' initiative
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Tuesday, May 17, 2022
An Important Council Decision
Surprise!
In a surprising move and in the context of a very important Council decision Thursday 12 May 2022, Mr Aaron Johnson flipped his vote away from supporting a Council initiative that would have given the village the opportunity to study carefully select critical issues for the village and then to update archaic Code with best practices based in expert guidance in order to benefit vital village interests for the long term and with maximum beneficial effect. Mr Johnson provided no comprehensible reason for his flip. Recall, the matter was up for vote because Mr Johnson had joined Mayor Young and Mrs Brandon in supporting this initiative at the Council workshop 2 May 2022.
The Threat Revealed
Immediately after Mr Johnson explained that he had changed his vote, Mrs Brandon spoke. She revealed that the Council had received a letter from a developer threatening the Council with litigation if the Council moved forward with its study and Code updating initiative. Mrs Brandon also revealed that in addition to the letter threatening litigation, representatives of the developer had contacted her family in attempts to speak with her. She noted that this was entirely unnecessary because Council email addresses are available publicly and there is a public forum for comments to the Council also. You can listen here to Mrs Brandon's comments: audio record at village archive–Council meeting 12 May 2022, agenda item 20 (the last meeting discussion).
Take a moment to consider how intense was this pressure that the developer applied to the Council in order to influence this Council decision.
Residents Had No Opportunity to Clarify
Unfortunately, none of this had been disclosed to the public prior to the Council meeting and vote. And because at the start of the discussion, Mr Frank D'Ambra had asked that citizen comments be taken prior to comments from the Council, residents had no opportunity at all to ask for clarification on the substance of the letter threatening litigation. In the typical order of discussion, citizen comments come after Council comments so Mr D'Ambra effectively thwarted public inquiry into and discussion on the substance of the letter.
No Video Record
If you were trying to watch the Council meeting on YouTube you could not. Usually Council meetings are broadcast by live stream to YouTube and also recorded. But a technical difficulty prevented the usual live stream and video recording for this Council meeting. Bad luck. The village has put an audio record in its document archive for your convenience to download. We will link to it in the quotes below.
The Vote: 3 to 2
The official vote was close nevertheless: three to two against an initiative that would have been very beneficial to the village (and to all property owners). It is really a huge lost opportunity. Nevertheless, we thank Mayor Molly Young and Mrs Laurie Brandon for standing firm in the face of intense intimidation.
Questions for the Council
Because Tequesta residents never had the opportunity to ask for clarifications at the Council meeting on the substance of a letter that appears decisively to have influenced an important Council vote by the slimmest margin, we submit here below comments as questions for clarification by the Council regarding the letter it received. We have obtained a copy of this letter through a public records request to the village. You can read the letter "Notice of Intent to Invoke Bert J. Harris Private Property Rights Protection Act and Objection to Proposed Moratorium and Inordinately Burdensome Regulations" here: Ethan J. Loeb letter for developers (10 May 2022).
A Harris Act Claim
In our reading, it seems that in fact the letter articulates no valid legal claim.
So the first question to the Council and village counsel is: what is the specific Harris Act claim that is articulated in the letter?
In particular, the following points regarding a Harris Act claim warrant clarification. Indeed, the Council vote suggests that those Councilmembers who opposed the proposed ordinance (Aaron Johnson, Kyle Stone, and Frank D'Ambra) did not have a complete and balanced understanding of the issues raised in the letter, the viability of any claim in that letter, or a realistic measure of such a claim's likelihood of withstanding motions to dismiss or for summary judgment, let alone the lengthy and punctilious Harris Act initial procedural requirements. ("Failure to follow the procedures will result in a dismissal of the Harris Act claim." Fla. Bar Journal, Harris Act Overview.) The pre-trial procedural framework for a Harris Act claim also requires a negotiation effort to resolve the dispute while protecting the public interest served by the regulations at issue. Id.
Yet, as Mrs Brandon observed, the Council had no specific regulation under consideration so that there is no regulation to assess in terms of its possible harm or benefit to property value or rights. And, of course, no real legal claim can arise from a purely imaginary regulation.
Moreover, the likelihood that the Council would enact Code that would harm property values is close to zero, so we are layers removed from a possibility of a valid claim. This initiative was to study and possibly update an archaic Code to benefit properties and the barrier island. A neighborly developer with a genuine interest in the well-being of this community would have embraced this initiative and shared their expertise rather than sending a letter threatening litigation.
A Harris Act claim exists as recourse where a property is "unfairly affected." A municipal Council trying to set up a process to study and improve outdated Code in order to protect vital community interests (the health and safety of people, the integrity of properties, and the value of properties) is not reasonably described as unfair.
A Harris Act claim requires proof of ""inordinate burden," specifically, "that the property owner is permanently unable to attain the reasonable, investment-backed expectation for the existing use."
For this claim element, note that a zoning in progress (a routine municipal practice) is temporary. Not permanent. So no claim on this score either.
Moreover, Mayor Molly Young commented on the record that she had done research into the matter and determined that studies indicated there was no harm that followed from the development hold for a zoning in progress. The purpose of this process is to enable a municipality to study carefully important community issues (which the village has been considering for a long time: lots of notice at this point) and then to obtain the maximum benefit from the improvements of the updated Code.
The letter threatening litigation refers to a development application already filed with the village. As we understand it, valid applications already on file would have been considered outside of the zoning in progress. Therefore, the property under that application would not even be subjected to any new regulation and thus could not give rise to any claim under the Harris Act.
The letter also refers to property which the developer was "in the process of acquiring." As we understand it, no Harris Act claim could arise based on prospective ownership.
On the other hand, by opposing the zoning in progress under consideration, it would appear that Aaron Johnson, Kyle Stone, and Frank D'Ambra have jeopardized vital village (and property) interests that were to be protected through the zoning in progress and the study and code-updating process. The real harm here therefore is a harm to village and property interests that the Council has the duty to defend.
It is also our understanding that under the Harris Act, if a developer sues a municipality and loses, then the developer is liable for all attorney fees and costs of the municipality also.
Mr D'Ambra has repeatedly noted his fear of a Harris Act claim. We hope that village counsel can provide Mr D'Ambra with some reassurance so that he may make decisions with a more realistic risk assessment of such a claim.
Mr D'Ambra has also argued repeatedly that there is already a good discussion process in place with developers. A letter threatening litigation in the present circumstances belies that assertion. If there were a respectful dialogue, the developer would embrace and participate helpfully in the municipal effort to put in place good Code for the long term benefit of the village and the future owners of the developer's own properties.
There are additional points warranting clarification.
Coastal Construction: The Village's Authority
Mr Philip Perko, one of two developer partners in Seaglass, 300 Beach Rd., 250 Beach Rd., and potentially Main Street, AKA Paradise Park, made the following comment to the Council:
“The jurisdiction isn’t in your department, you have to coordinate with those agencies.” [Mr Perko was referring to DEP and FWC.]
Mr D'Ambra also (disconcertingly) admitted that he did not know if the village had "legal authority" to regulate on or near the sand dune.
We were surprised that these comments, implying that the village does not have jurisdiction to regulate coastal construction, were not clarified by village legal counsel.
In fact, under the Florida Statute governing coastal construction, municipalities are explicitly authorized to regulate:
Sec. 161.56 Establishment of local enforcement
(1) Nothing in ss. 161.52-161.58 shall be construed to limit or abrogate the right and power of the department to require permits or to adopt and enforce standards pursuant to s. 161.041 or s. 161.053 for construction seaward of the coastal construction control line that are as restrictive as, or more restrictive than, the requirements provided in s. 161.55 or the rights or powers of local governments to enact and enforce setback requirements or zoning or building codes that are as restrictive as, or more restrictive than, the requirements provided in s. 161.55.
And many municipalities do. Of course this makes sense and this is exactly what was at issue in this vote. You can see the intelligence of the state law: local government is apt to have the best information on local conditions and so local government should be enabled to provide the best Code for protecting its local space. This is an intrinsic part of the statutory structure protecting the vulnerable and complex coastal area. The purpose of the zoning in progress was to enable the Council to bring into the village Code the best expert guidance to protect coastal properties, inhabitants, and environmental interests.
Mr Perko also made the following statement to the Council:
"I think you guys got ahead of yourself on this, and I don’t think you have a clear understanding of the environmental regulations to development on the coast. And I would encourage you to get more educated before making a decision this important that’s going to affect all the major stakeholders, from first responders, to your employees, to the citizens, it’s a big, big task, and it’s a very complicated process."
As noted previously, the purpose of the zoning in progress was to study and catch up on serious deficiencies implicating important values and risks to the village (and to neighboring municipalities). To be clear again: there was no new regulation on the table, that is, no "decision" as to new regulation at this point. The purpose of the zoning in progress was for the village to get this education recommended by Mr Perko; to get the best advice from the most competent experts to determine the best practices and update the Code with the best law to keep the barrier island as healthy and as beautiful as possible. The purpose of the development hold is to ensure that the Code improvements yield the maximum benefit to the village and to all properties. You might think that a community-minded developer would be happy to help a municipality in this work and share his expertise. But the letter threatening litigation seems instead to have decided the vote the wrong way and thus to have destroyed this opportunity for the village of Tequesta.
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