Law360, Miami (May 08, 2015, 9:33 PM ET) -- A group of Miami residents responded to mixed success from a pair of rulings on Tuesday, including a dismissal of their suit to halt a $400 million mixed-used development, saying they will appeal and are emboldened by a separate order requiring the city to show why it didn't comply with a related public records request.

Circuit Judge Monica Gordo ruled on Tuesday that the plaintiffs, Venetian Island residents who live near the Flagstone Property Group's Island Gardens development site and claim it will cause traffic jams and sea-level rise, lacked standing to stop the project because they didn't plead "special injuries" arising from city resolutions on the project.

The ruling, which was followed by a notice of appeal late Tuesday, said that the residents cannot rely on the Miami-Dade County Charter's Citizens Bill of Rights to make claims that the city failed to provide complete and accurate information to the public about the project because the charter doesn't provide plaintiffs with a cause of action without special injuries.

Roger Craver, one of the litigants and president of a nonprofit group opposing the project, which is being built on city property on Watson Island, said in a statement after the ruling that the case is far from over.

“We have appealed this decision, because if it stands, it would be the final nail in the coffin burying the public’s right to participate in government decision-making,” he said.

Craver added that it was equally important that on the same day as Judge Gordo's ruling, Circuit Judge Thomas J. Rebull in a related case ordered the city to show cause why it should not be sanctioned and held in contempt for failing to comply with a public records request made by fellow litigant Stephen Herbits.

Craver said the public records documents revealed in that case, which he said prove the project is illegal, were central to the group's claims.

“As a result of the Rebull order we intend to put officials under oath to get the truth out,” Craver said. “These actions will certainly surprise the public, and put certain officials in a highly defensive mode, while providing critical evidence.”

Herbits had filed that suit Aug. 15, claiming the city was three months delinquent on his public records requests for the project. On Sept. 5 the court ordered the city to produce all responsive records until depositions were completed. In November, the city told the court it had done so, then it produced a marina construction permit nearly four months later.

The permit amounts to a “smoking gun” in respect to the legality of the Island Gardens project, Herbits contended.

“The document and related correspondence records demonstrate conclusively that Flagstone did not meet its June 2, 2014 deadline to commence construction, defined as all material plans and permits are approved and issued and the actual act of physical construction has begun,” the motion said.

Flagstone representative Brian May said in March that the developer clearly started work on schedule with environmental mitigation for the marina, adding that he appeared before the City Commission last summer to provide details on its steps constituting compliance with the June 2 deadline.

Judge Rebull ordered the city to explain by May 22 why it didn't produce all of the records that were requested before the September 2014 deadline.

Approved by Miami voters in 2001, the project includes 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 more than 600 rooms, entertainment and cultural venues, and a fish market, according to information from the city and developer.

Controversy has grown as the wait for construction to start dragged on for more than a decade. In a separate lawsuit, Herbits accuses the city of seeking to expand the project without public input. City commissioners approved a deal in May 2014 for Flagstone to pay at least $2 million in annual rent to the city for the property that also pushed the deadline for construction to start back to June 2, 2014.

Herbits holds that city officials have repeatedly failed to comply with their public records obligations under Chapter 119 of the Florida Statutes in an effort to keep Flagstone's project alive.

An attorney for the city did not immediately respond to a request for comment Friday evening.

Herbits is represented by Samuel J. Dubbin of Dubbin & Kravetz LLP.

The city is represented by City Attorney Victoria Mendez.

Flagstone is represented by Jeffrey S. Bass, John K. Shubin, Salvatore H. Fasulo and Katherine R. Maxwell of Shubin & Bass PA.

The case is Herbits et al. v. City of Miami et al., case number 14-024334-CA-02, in the Circuit Court for the Eleventh Judicial Circuit of Florida.

--Additional reporting by Nathan Hale and Carolina Bolado.  Editing by Brian Baresch.

 

 

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