By Nathan Hale
Law360, Miami (August 18, 2014, 8:26 PM ET) -- The city of Miami has not been forthcoming with public records and information regarding efforts to develop a long-awaited $400 million-plus mega-yacht marina and mixed-use commercial project on city-owned land on Watson Island, a city resident claims in a lawsuit filed Friday.
Plaintiff Stephen Herbits, a Miami businessman and resident of the nearby Venetian Islands who accused the city in a July 3 lawsuit of seeking to expand the project without public input, says in this latest action that city officials' failures to respond to his requests for records related to their efforts to keep developer Flagstone Island Gardens LLC's project alive is obstructing his and other citizens' efforts to determine the legality of their government's actions.
“Several records already uncovered by plaintiff show that the city has in fact violated several state and local laws, including the City of Miami Charter, and may have violated other laws as well,” Herbits said.
“Defendants' current failure to comply with their obligations under the [Florida Statutes] Chapter 119 not only violates the public records law, but improperly denies plaintiff and the public information to which they are entitled in order to learn what their government is doing and take appropriate action if they so choose,” he added.
In addition to the city, the one-count suit for enforcement of the public records law also names City Manager Daniel Alfonso, Deputy City Manager and Chief of Infrastructure Alice Bravo, Planning and Zoning Director Francisco Garcia, Zoning Administrator Irene Hegedus, City Attorney Victoria Mendez and the Director of Public Facilities Henry Torre as defendants.
The Flagstone development project — originally approved by Miami voters in 2001 — includes a plans for a 50-slip marina that holds yachts up to 400 feet, more than 200,000 square feet for restaurants and retail, two luxury hotels with upward of 600 keys, entertainment and cultural and a fish market, according to information from the city and developer.
It would generate about 2,500 permanent jobs and 10,000 temporary jobs during construction, according to the city's Department of Real Estate Asset Management.
Herbits has asked the court to call an immediate hearing ordering the defendants to show cause why the requested records should not be produced and instructing them to produce them. He also seeks legal costs and attorneys' fees for the suit.
As an example of city officials' conduct, Herbits cites a recent traffic study for the area, including the heavily trafficked MacArthur Causeway which connects downtown Miami and Miami Beach through Watson Island.
As of a February 2014 records request, the city had not provided any traffic studies conducted more recently than 2004. At a May 13 meeting of the Florida Cabinet, however, Bravo defended the property's eligibility for a deed modification by saying, “A traffic study was updated in November 2013 that showed a favorable outcome.”
Following another records request filed a few days later, the city on May 19 produced a document titled “Island Gardens Traffic Study,” Herbits said, but it has not provided any of the related prior or subsequent correspondence, amendments, edits or other records requested.
City commissioners approved a deal in May under which Flagstone agreed to pay a minimum of $2 million in rent annually to the city for the property and the deadline for construction to commence was extended to June 2.
Despite multiple public requests since then, the city has not provided documents on the ground lease or proof that Flagstone delivered to the city showing that the company met the required conditions to maintain its development rights, Herbits said.
This includes timesheet entries reportedly provided by the city to a local news outlet showing Flagstone's environmental consultant had done work that the city and Flagstone say qualifies as “start of construction.”
As of Friday, “the city has produced only a miniscule number of paper documents since October 2013, and has produced no electronic or paper records of any kind dated later than May 5, 2014, despite evidence of substantial ongoing activity within the city and despite Chapter 119 requests by plaintiff covering these time periods,” Herbits says.
Alfonso, Bravo, Mendez and Torre have not responded at all to July 3 requests Herbits says he directed to them individually in light of the alleged lack of compliance by the city. Garcia and Hegedus, or their offices, have provided some documents in response to that request, but Herbits says he has reason to believe their responses were incomplete.
“With possible legal deadlines looming for members of the public to challenge the city's actions, it is imperative that this court act immediately and order the city to comply with its obligations [under the Florida Constitution and Florida Statutes],” he said.
Garcia, the planning and zoning director, referred inquiries to the city attorney's office.
"We hope to dispose of this case swiftly," City Attorney Mendez told Law360 Tuesday afternoon, declining further comment while litigation is pending.
Herbits is represented by Samuel J. Dubbin of Dubbin & Kravetz LLP.
The city is represented by City Attorney Victoria Mendez. Counsel information for the individual defendants was not immediately available.
The case is Herbits v. City of Miami et al., case number 2014-21347-CA-01, in the Circuit Court for the Eleventh Judicial Circuit of Florida.
--Additional reporting by Zachary Zagger and Carolina Bolado. Editing by Rebecca Flanagan.
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