BY DAVID SMILEY - DSMILEY@MIAMIHERALD.COM 04/03/2015 4:13 PM
If the lawsuits are to be believed, Miami City Hall has run amok.
During the past 18 months, nearly a dozen citizens have accused Miami officials in court of misleading voters, hiding public records and ignoring the city’s own laws in order to secure or preserve lucrative projects for developers. The litigants — including the mayor’s own daughter — have asked the courts to protect the public by invalidating three voter-approved projects in Coconut Grove, behind Bayside and on Watson Island.
City officials and attorneys deny and dispute the allegations.
But whether there is truth to the claims may not matter. Because in fighting these lawsuits, the city’s attorneys have transformed the cases into trials on the public’s ability to sue.
At least three complaints — two seeking to overturn the redevelopment of city land on Dinner Key and a third challenging a mega-yacht marina project on Watson Island — have been dismissed in the last year on the grounds that the plaintiffs couldn’t prove they had “standing” — a personal stake in the outcome beyond that of any other citizen/taxpayer. A fourth lawsuit seeking to invalidate the referendum approving the SkyRise Miami observation tower behind Bayside Marketplace is being challenged on the same argument by both the city and Miami-Dade County.
Suddenly, when it comes to standing, citizens are finding their cases against City Hall have no legs.
“If my clients don’t have standing to raise these issues and allow this court to examine the actions of the city,” attorney Sam Dubbin said last month during a hearing on the Watson Island project, “then we have no accountability in local government.”
On Monday, a crucial battle goes before the Third District Court of Appeal. City Commission candidate Grace Solares and Dinner Key businessman Stephen Kneapler are both appealing court rulings that dismissed their separate lawsuits. They claimed that the city failed to get fair market value from a lease with Grove Bay Investment Group, and ignored competitive bidding requirements laid out in the city charter, which is akin to Miami’s constitution.
Both Kneapler and Solares were told by lower-court judges they had no grounds to sue because they had not proved they’d been specifically harmed by the development in a manner unique from what any other Miami resident or taxpayer could claim. But Solares and Kneapler say that’s not a requirement when the city violates its constitution.
The appeal court’s ruling on the case could have broad implications. Seven Miami and Miami Beach residents, for instance, are trying to block the Flagstone Island Gardens development under way on Watson Island, but have been told they don’t have standing to bring their case even though one of the plaintiffs successfully sued the city and blocked a Watson Island amusement park project back in 1981. They claim the city has changed the project in a way that it no longer fits what voters approved in 2001, willingly accepted less than fair market value in rent, and ignored a deadline to build.
Raquel Regalado, the daughter of Miami Mayor Tomás Regalado, is also awaiting a hearing on the issue of standing in the lawsuit she and auto magnate Norman Braman filed seeking to invalidate a referendum on SkyRise. Though they blame the county and the developer, they say Miami City Hall incorrectly sold the project to voters as a “private” venture despite a quietly pending and ultimately successful request by SkyRise developer Jeff Berkowitz for millions in public funds provided by property taxes.
“Why can’t the courts debate the issues? What rights do taxpayers have?” said Braman. “It’s baloney.”
Braman’s attorney, Richard Ovelmen, says recent rulings in Miami-Dade circuit court have muddied the waters on the issue of standing. He says case law shows voters and citizens have the right to challenge election and charter violations in Florida. Should the city prove victorious, citizens could have trouble challenging their local governments in court, he said.
“It would be a fundamental change in Florida law,” said Ovelmen.
But Miami’s attorneys say that’s not true, and in the recent rulings the courts have upheld legal precedent that protects government from frivolous lawsuits. Without those protections, they say, government would freeze under a barrage of lawsuits by disgruntled citizens.
“If citizens are allowed to bring these types of suits, the courts will be inundated with suits alleging all different types of governmental actions and governmental illegal activities and government functions will essentially grind to a halt,” Assistant City Attorney Forrest Andrews said during a March 5 hearing on the Flagstone project.
Instead, Andrews argued, frustrated citizens should take to the polls and vote, or find the appropriate public representative to sue on their behalf, such as Florida’s attorney general.
“What makes this country such a democracy is that all citizens are afforded the ability to go to court and address ‘valid’ claims,” City Attorney Victoria Méndez wrote in an email. “We are not bullying, we are effectively litigating these claims. We are defending our position based on current law.”
Those challenging the city’s actions, however, say Miami’s position is that only government can challenge illegal actions of government, which is essentially “the fox guarding the hen house.” In the Flagstone Island Gardens lawsuit for instance, a judge this week issued a show-cause order requiring the city to prove why it shouldn’t be held in contempt for failing to turn over an Aug. 15 city permit giving the developer the right to dredge for its mega-yacht marina.
Dubbin’s clients believe the permit was withheld despite a court order requiring its release because it proves the developer failed to begin building its marina by a June 2 deadline. City administrators say that deadline was met when Flagstone began mitigation work even though a contract with the developer says commencing construction means “that all material plans and permits are approved and issued and the actual act of physical construction has begun.’’
While the city’s attorneys have consistently denied and dismissed allegations that they’re abusing the public’s trust, plaintiffs like Kneapler and Solares say there’s a pattern of behavior that proves otherwise. And they believe they’re obligated to hold Miami City Hall accountable.
“You can’t just be a critic,” said Kneapler. “You’ve got to put your hat in the ring.”
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