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April 17th, 2013

Three lawsuits pending over Council’s Walgreens approval

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illage Attorneys are responding to no fewer than three claims filed in Miami-Dade Circuit Court regarding February’s Village Council conditional approval of a site plan for a Walgreens at the Key Biscayne entry block.
Two come from Commodore Realty and Key Biscayne Gateway Partners, entry block owners, and challenge the Council’s decision to make approval contingent on prohibiting vehicular cross-access between the Walgreens site and the adjacent Harbor Plaza shopping center.
One is from longtime resident and former Council member Luis Lauredo. It argues the Council failed to follow its own standards for site plan approval, and had insufficient evidence when it allowed cross-access to Harbor Plaza for pedestrians, bicyclists and golf carts.
Village Attorney Steve Helfman said he planned to file responses to all the arguments this week; he also called for an executive session before this week’s Tuesday, April 15, Council workshop to discuss the suits with elected officials. He said he feels the two complaints from Gateway are improper and baseless, and while Lauredo’s filing is a “proper complaint,” he’s confident the Council’s actions were absolutely appropriate.
With all the legal wrangling, an obvious question emerges:
Will the controversial project, which would bring a pharmacy and liquor store, move forward, or will Walgreens walk away due to the cross-access ban?

Walgreens future
Currently, there’s no definitive answer.
Phil Caruso, a spokesman from Walgreens corporate headquarters in Illinois, provided a brief statement: “We are reviewing the Council’s proposal and will continue to work to find a solution that is best for our customers and the community.”
Trey Morgan from The Morgan Group, the development firm that filed the site plan on behalf of Walgreens, did not respond to a request for comment.
But the property owner’s lawsuits do acknowledge the cross-access is “of critical importance” to their planned tenant.
One of their lawsuits notes the ban – has “resulted in irreparable harm, particularly regarding petitioner’s contract with Walgreens. Each day the applications remain pending results in a loss of income petitioner would have acquired through its lease contract.”

Property owner’s lawsuits
The land owner’s claims are currently pending in Circuit Court, and Commodore attorney Michael Winkleman said he’s confident his client will prevail: “We are very confident in our position in all the claims,” he said. “When an objective, fair judge looks at the facts, they are going to do the right thing.”
The first is an amended Writ of Mandamus. An original Mandamus action, filed last year, asked a judge to force the Council to hold a hearing on the Walgreens site plan; now that a hearing has occurred, the amended motion asks a judge to order the Council to approve the site plan with the cross-access through Harbor Plaza, arguing the plan complies with all zoning rules.
“This is a property that’s zoned for this use, and we’ve met all the requirements,” Winkleman said, “so we’re asking the court to force them to approve the site plan.”
He said his client clearly has the legal right to make the claim: “If a neighbor like Mr. Lauredo can file a petition, I’m pretty sure the owner of a property has standing,” he said.
The claim alleges the Village “delayed and distorted” the site plan approval process out of a publicly-stated desire to condemn the entry block so the Village can acquire it for park space. Approving the plan without the cross-access continues on that path, according to the suit: “This was done in a bad faith attempt to make the property undesirable for a Walgreens,” it states.
And in doing so, the Mandamus claim alleges, the Council devalued not only the Walgreens lot, but Harbor Plaza – an innocent bystander whose due process rights were violated, as the owners weren’t afforded an opportunity to fight for their property rights.
Attorneys argue the Mandamus action is appropriate because state law makes it clear governing bodies cannot act on “whim or caprice” when ruling on site plans, and that is what the Council did by going against its own zoning regulations to set conditions on the Walgreens plan.
Meanwhile, attorneys make similar arguments in a Petition for Writ of Certiorari asking the court to quash portions of the development order that limit or close cross-access. They state the Village did not observe essential requirements of the law in setting the conditions, and that the decision is not supported by substantial competent evidence.
“The Village of Key Biscayne disregarded the essential requirements of the law and ignored its own uniform standards … and instead acted on whim and caprice to delay and ultimately deny, in part, the Walgreens applications in a transparent attempt to devalue the property for purposes of condemning the property via eminent domain,” they say, calling it a “nefarious scheme.”
The suit states once the Village learned cross-access was of “critical importance” to Walgreens, officials conspired to close the through-way to force the drugstore chain to back out of their deal.
Attorneys say that is proved by the fact that the Village obtained an unnecessary traffic study for the project – and then when that study said the cross-access posed no problem, solicited a new “hired gun” to tell it what it wanted to hear: that the cross-access is dangerous.
From there, the writ argues, the Council relied on its seriously flawed second traffic study, staff recommendations based on fraud, and the opinions of lay people to deny the cross-access – despite the fact that its own first traffic expert and an expert hired by the development team said the plan works just fine.
The lawsuit adds the decision, which it states the Council did not have the authority to make, significantly cuts the value of the property: $15 million with cross-access verses $11 million with no cross-access, or a 36 percent reduction.
However, Winkleman said, the lawsuit isn’t focused on the financial loss directly: “The issue is the lack of compelling and substantial evidence for the Village Council’s findings,” he said.
“They disregarded what the law requires them to do by hiring an expert, disregarding the expert’s findings, lying about the findings and then going out to find a new expert, a ‘hired gun,’ through a process outside the laws of the way an expert is supposed to be hired.”

Village: land owner’s suits improper
As he prepares the Village’s response, Helfman had harsh words for both complaints.
On the amended Mandamus motion, he said attorneys are basically asking a judge to tell Council members how they should rule on the issues. “He’s trying to compel the result. He’s saying, ‘You have to mandate the result of the hearing, and tell the Council how they should vote,’” Helfman said. “It’s a ridiculous theory. There is no basis in the law for it.”
He said he plans to file a motion to dismiss.
Helfman also noted the motion still comes only from the land owners, not The Morgan Group or Walgreens, neither of which has challenged the Council’s action.
The same goes for the second legal argument, Helfman said, an appeal of the Council’s site plan approval. He calls the motion “completely baseless,” and said it’s improper for the land owner – not the developer – to file such an appeal.
“This is a complete misuse of the appeal process,” according to Helfman.
Helfman said the suit relies on the complaint that the property owner was financially harmed due to the elimination of vehicular cross access – i.e., that their property is now worth less due to the conditions the Council set. However, he said, that’s not a proper basis for a zoning appeal.
“What he’s basically saying is, ‘I won, but I didn’t win enough. My property is worth a lot, but not as much as I want it to be,’” Helfman argued. “He’s claiming he’s not making enough money from the government approval, and they should be compelled to give him more.
“But that’s not what you use the appeal process for. If you’re economically harmed, you can sue the government, but not in a zoning appeal.”

Lauredo’s suit
While Helfman feels the land owner’s complaints are improper, he said the suit filed by Lauredo – on behalf of the public at large – is a “more typical, proper complaint.”
Lauredo’s motion, filed by attorney W. Tucker Gibbs, is based on two arguments, the second of which is similar to those in Winkleman’s motions: that the Council failed to follow “the essential requirements of law” because it did not correctly apply its site plan approval standards, and that the Council’s decision was not supported by “competent and substantial evidence.”
Lauredo did not respond to requests for comments. A message left at the phone number listed for Gibbs also went unanswered.
However, a copy of the lawsuit lays out the arguments.
It notes Lauredo, as a property owner within 300 feet of the project, has standing to file the claim because he would be negatively impacted by traffic and safety problems caused by Walgreens.
The lawsuit argues, “The approved site plan will make worse existing hazardous conditions on the Harbor Drive access point proposed to be shared by the existing Harbor Plaza project and the proposed Walgreens, as well as the often gridlocked traffic on Crandon Boulevard.”
Therefore, it notes, the Key Biscayne zoning code’s standards – which require adequate vehicle circulation patterns – were not properly applied to the site plan.
Secondly, the suit states the Council improperly amended the staff-recommended condition to close cross-access between the two properties. It argues when the Council altered the condition to let golf carts, pedestrians and bikes use the pass-through, it did so without competent and substantial evidence, which is defined as being “sufficiently relevant and material that a reasonable mind would accept it as adequate to support the conclusion reached.”
However, it notes, there was no expert opinion given on the Council’s amendment: “This change in the condition was not supported by any competent substantial evidence in the record.”

Village responding to Lauredo claim
But Helfman said he is confident the Council was well within its purview when it predicated an approval of the plan on the amended cross-access ban and other conditions.
According to the Village Attorney, doing so isn’t atypical at all.
“He argues it’s not up to the Council to solve the developer’s problems by creating conditions or modifying the plan to make the project conform, but I believe the Council has the right to set conditions to decrease adverse impacts of the site plan,” Helfman said. “It happens all the time.”
Helfman said most major zoning approvals in Key Biscayne come with conditions recommended by the Building, Zoning and Planning Department and agreed to by the Council, and he is confident he’ll be able to defend the Council’s site plan approval on those grounds.

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