Law360, New York (March 23, 2015, 6:48 PM ET) -- Documents recently produced by the city of Miami in a public records lawsuit prove the illegality of a $400 million mixed-use project planned for city-owned Watson Island property, the plaintiff claimed Friday in a motion seeking sanctions over the city's alleged noncompliance with state laws.

Stephen Herbits, who lives on the Venetian Islands near the site for Flagstone Property Group's Island Gardens project and has several lawsuits pending over the plans, filed the emergency motion for sanctions Friday in state court after receiving on March 3 a marina construction permit for the project issued Aug. 15 and several related emails.

Herbits had filed the instant 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 on an ongoing basis until depositions were completed. In November, the city told the court it had done so, then it produced the permit nearly four months later.

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

“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 Monday 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.

"This is just more of Mr. Herbits and his legal shenanigans against the city, none of which have yet to establish any merit," he said.

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 under which Flagstone agreed to pay at least $2 million in annual rent to the city for the property and the deadline for construction to start was extended to that June 2.

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.

“The behavior of the city’s legal department calls out the question of whether they represent the citizens of this city, or certain officials and private developers against the interests of those citizens,” he said in a statement released by the Coalition against Causeway Chaos, a group of residents supporting Herbits and other legal efforts. “Why is the city willing to engage in such outrageous behavior to prevent the public from knowing what it is doing? What are they afraid of?”

Herbits asked the court to make the city provide an affidavit attesting to its full compliance with his public records request and the court's orders and subject all city officials involved in the response to depositions.

He also requested an instruction for paper copies, at the city's expense, of all documents the city produced so that he can compare them with what he has received so far, and wants the city to have to certify how it will ensure compliance in the future.

Additionally, Herbits has requested that the court refer the matter to the state attorney for Miami-Dade County, saying that the city has violated public records laws for 20 months and that on at least three occasions city witnesses said that every agency had been consulted and that it had fully complied with his records request and the court's Sept. 5 order.

“It is unfortunate that he continues to use the court system to unnecessarily hinder a much-anticipated project on city land,” City Attorney Victoria Mendez told Law360 on Monday.

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 Brian Baresch.

 

 

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