Sunset Lawsuit Ruling and 11/6 Commission Item re Appeal

(Note: This was originally posted on 11/16 but I am bumping it up so that it appears at the top of the blog. I noticed some heavier than usual activity on this post today. Just a few minutes ago, someone posted regarding a similar situation in Boca Raton.
So, here is the entire post with the new comment, along with my response)

Judge Fine of the Fifteenth Judicial Circuit issued his final ruling on October 26th. This ruling was received by the City on October 29th in the City Attorney's office. There is a request on this coming agenda (New Business - Item E) for the City Commission to authorize and appeal of the Circuit Court's final judgment. Furthermore, the City Attorney recommends that the City retain the law firm Casey, Ciklin, Lubitz, Martens and O'Connell to represent the City and requests that the Commission authorize the Mayor to request support from the Palm Beach County League of Cities in pursuit of this appeal.

This is far from a victory for either the Save our Neighborhood, Inc PAC or the City. Judge fine, in his ruling, makes some fine (eh hem) distinctions regarding the various issues involved and I think that it is important to highlight those here. So, I will go page by page of the ruling in order to give my assessment and perspective on the issue. It is important to note that the writ of mandamus - an action that would require the City to act to put the items to a referendum - was denied. The order essentially sends back the matter to the City Commission for a determination of the number of parcels affected by the land use plan change. Below is a highlighted version of the City Attorney's memorandum. That pretty much speaks for itself, so we will move on to the actual ruling. Remember to click on the images for greater detail.

Well, let's start at the beginning, a very good place to start. First of all, remember that I am not an attorney and do not pretend to be one. What follows are only my opinions on what was actually determined here.

In the above, note that the court "partially grants" the petition regarding the two ordinances related to the Future Land Use Plan (FLUP) change. Furthermore, the court DENIED the similar petition regarding the rezoning ordinance (which will be explained later) and DENIED the Writ of Mandamus related to the City submitting the petitions to the Supervisor of Elections. This is no where near total victory for the Save Our Neighborhood (SON) PAC. As we will see, the major issue framed by this ruling is the determination of the number of parcels affected by the FLUP change ordinances by the City Commission - which I believe to be a meaningless distinction.
There were two ordinances related to the FLUP change - 2005-54 and 2006-04. These ordinances changed the land use designation to low-density multifamily residential. The reason for the two ordinances is that the first one in 2005 dealt with the prospect of this being considered a "small scale" amendment by the Department of Community Affairs (DCA). Traditionally, this organ of the State considered FLUP changes to a parcel of less than ten acres and less than 100 potential residential units as small scale amendments. These could be batched individually and the changes incorporated on the FLUP map without specific State of Florida review. However, DCA, in reaction to political pressures (some applied locally, I am sure) and in response to the boom residential market at the time, chose to consider this a large scale amendment. On this page the court is basically reviewing the history of the process here and saying that the change was incidental and these are essentially the same ordinance. The distinction is made here since the petitioner (SON) did not include the later ordinance in the lawsuit - but the judge is saying that didn't matter.

It's also interesting to note that the court is saying that state law is indeed superior to provisions in the city charter. As such, it is the city's position that the state statute bars a referendum attempt due to it's prohibition of the same in reference to comprehensive plan amendments that affect fewer than 5 parcels. Somehow, the state legislature included this language in the statute, but really didn't offer an explanation on the difference in impact to FLUP changes that affect five or fewer parcels and six or more parcels. This is what I believe to be a totally arbitrary decision made by the legislature. The court agreed that this language is ambiguous and therefore is playing it proper role in interpreting legislation.

The court determined that the rezoning ordinance (2005-53) is considered a development order, since it actually is the order granting a development permit. According to the court, Florida Statutes define "development permit" as any rezoning permitting the development of land. I think this is given too much weight to the rezoning ordinance as permitting development, especially in this case. The property owner/agent still has to submit a Special Use Permit application if they plan on constructing townhouses on the property (which has consistently been their intent). But, the court says that the rezoning is a development order. Due to the way the statutory language is split up, it is saying that the five or fewer parcel provision does not apply and, in the court's opinion, a development order/permit cannot be subject to a referendum. However, the changes to the comprehensive plan can be subject to a referendum - as long as the affect of the change is to six or more parcels.

The court did not agree that a writ of mandamus could be issued compelling the City to submit the referendum petitions to the Supervisor of Elections since there was not an "unequivocal right" regarding the duty in question. Writs of mandamus are typically used to force governments to do something that is permitted, according to policy and would be issued for any other reason but for subject matter or political sensitivities.

A good example of where a court could issue a writ of mandamus would be the granting of a driveway permit. Let's say everything in the permit application was complete and the design of the driveway met all the standards set by the local government. The local government must issue the permit if it meets all the standards. But let's assume that a neighbor has a problem with the issuance of the permit and for that reason the local government is hesitant to issue it - even though all is in order. Granting the writ of mandamus here would compel the local government to issue the driveway permit.
This is where things go "whacko" in my opinion. What the judge is saying here is that, as part of its being a fact-finding body, the City Commission needs to determine the affect of this FLUP and whether or not it affects five or fewer parcels of land. He is saying that this wasn't done initially, so he is asking that it go back to the City Commission so that they can determine that "fact". Well, I beg to differ with the Judge that the affect of a FLUP change really cannot be measured accurately, scientifically or otherwise. To ask the City Commission (or all local governing bodies) to determine that when considering FLUP requests is pure folly.

So the judge is saying that statutory language can be construed strictly or liberally. The City wanted a liberal interpretation - but the court determined that "parcels" mean more than just the number of parcels that are subject to the FLUP and the City can consider "affect" beyond the parcels (the 4 acre subject parcel) that is the subject of the matter.

The court is also saying that the City didn't do its job by only considering the parcels subject to the change. Practically speaking, this interpretation would require all local governing bodies to make a preemptive strike at a referendum on passage of a FLUP change by determining the number of affected parcels. Five or less could not be the subject of a referendum; six or more could be. Again, this "fine" distinction would amount to "hair-splitting" determinations that are really meaningless, upon examination.

Since, in the court's opinion, the City hasn't repealed the land use plan change ordinances, those are "suspended from taking affect" until the City determines the impact.

All in all, the court here didn't do anyone any favors and, in my opinion, attempted to "split the baby" to settle the dispute. It is an unworkable ruling since whether one parcel is affected or sixteen parcels are affected cannot be "factually" determined. The "affect" can be, and will be, politically determined - to the detriment of all local governments.

Thus, the City Commission, on a 3-2 decision, voted to appeal the ruling.

Legislative Breakfast 1/31/08

This is always an informative event. Just an FYI - let me know if you are interested in attending and we can share a ride. This year might be particularly engaging as it will be two days after the January 29th election re the property tax reform measure.

I happen to be back on the board of the Palm Beach County Planning Congress, this time as Treasurer. I'll let you know of other events as they are scheduled throughout the coming year. This group was one of the sponsors of the ethics seminar held in November.

Population Growth

There has been a lot of speculation about the rate of Florida's population change. Some have guessed, mainly through anecdotal evidence, that population statewide - and locally here in Palm Beach County - might have actually declined over the past two or so years. I personally know many people that cashed out of their property at the height of the real estate boom. This also coincided with the period right after the 2004 and 2005 hurricane barrage. Many left for other areas of the country where housing prices were lower (North Carolina was a popular choice) and where there was less of a chance of some catastrophic natural phenomena happening.

When I start talking about the need to direct population growth to already urbanized metropolitan areas, some people immediately say "What growth? Our population is declining, not increasing." Well, ladies and gentlemen, that is not the case. According to figures released by the U.S. Census Bureau, Florida's population is still increasing, albeit at a slower rate than recent history.

It is dangerous to think that we are somehow "out of the woods" when it comes to population increases and the concept of growth management for environmental and social reasons. Unfortunately, the current housing "glut" helps mask the fact that population is still increasing. Let's be thankful for the addition of new people as that will eventually resolve the current over-supply of residential units, as prices adjust and units are absorbed.
The map above is interesting for a number of reasons. First, it shows the percent change in metropolitan and micropolitan (smaller statistical areas) from April 2000 to July 2006 in the Unites States. The darker purple shaded areas show places that experienced the higher rates of growth for that period. Second, it reflects Palm Beach County being part of the Broward and Dade county area for statistical purposes. Lake Worth is part of that Metropolitan Statistical Area (MSA) of over 5,000,000 people. Lastly, it shows that smaller geographic areas can have higher or lower rates of growth than the state as a whole. This is important when we look at what has happened to the overall State of Florida growth rate as reported below.
The chart above (remember you can click on these images for greater detail) shows the cumulative estimates of population change from 2000 to 2007. Overall, the United States has experienced 7.2 percent growth over that period and the South (of which Florida is a part) has grown by 10.2 percent. The State of Florida has added an additional 2.2 million people over that time - which relates to an increase of 14.2 percent. That ranks as seventh fastest growing state in the nation. Florida is the fourth largest state in population, as compared to the other 49 states. The chart below shows the same information for states coming later in the alphabet.
The chart above shows similar information and rankings, but does it for just the 12 month period from July 2006 to July 2007. Here we see evidence that Florida's rate of growth has slowed and is actually growing less quickly than the entire southern region. In fact, according to this data, it is now the nineteenth fastest growing state in the nation. But, it is still growing! If we refer back to the map above, we see that our region is still one of the faster growing regions of that state - with the exception of the Orlando, Treasure Coast and other areas. Remember too that our region has a larger population to begin with so an increase of say 1 percent amounts to many more actual people that a 1 percent increase in lesser populated areas.

So the point here is that population is still increasing in our state and region. We have a choice. Do we want to channel that growth into already developed areas where the infrastructure exists and the ecological damage has already been done? Or do we want to direct that growth to areas that are either productive farmland or environmentally sensitive areas that lack the transportation and utility infrastructure necessary to support that growth? Development in those sensitive, non-developed areas would be primarily lower density "sprawl" patterns that are dependent on fossil fuel burning single passenger vehicles - hastening the global problems of climate change and the rest.

The next time you think about the redevelopment pattern we have in Lake Worth - think about this. Also think about how careful we have been in relation to our nearby coastal municipal neighbors - West Palm Beach, Lantana, Boynton Beach and Delray Beach. If you would like to take a safari with me to those cities and compare their redevelopment to what we have experienced here in Lake Worth, I'd be happy to do so.

Joyous Holiday

It's my sincere hope that you had a wonderful day spent among family and friends. I actually planned to be here at home with my dogs for most of the day. Last night I happened to bump into a friend and he invited me over for some Christmas ham and to be part of their festivities, which was very nice. Thank you Mark and John.

Also to let you all know that I will be hosting Karaoke at Club A.J.'s tomorrow night (Wednesday) from 9 p.m to 12 a.m. If you have a light work schedule this week or have chosen to take this time off, this might be a good opportunity to come out and see what happens. Singing is not required, but it adds to the enjoyment. Last week Maura Hennesey dropped by (her office is right next door on J Street) and sang "Dirty White Boy" - I kid you not! Fun! So, see if you can make it.

I hope you enjoyed the videos on the Queen and the Corgis - thought it would be a nice holiday treat.

Final thought for now. I don't know if you saw this article or not, but there was a carjacking at gun point at 13th Avenue North and Dixie Hwy. at 1 a.m. Sunday morning. You can read about the details by clicking here. Notice that this out-of-town Illinois couple were staying at one of our hotels along Dixie Hwy.

Who let the Corgis out?

The lighter side of Queen Elizabeth II

A Message from Queen Elizabeth (1957) II

Tropical Moons

For a while now, I 've wanted to take pictures of the full moon through the palm trees in my front yard. Tonight was the first opportunity when I was at home, the moon was full and in the right position. These are a couple of different views taken with my better digital camera. The effects are courtesy of Photoshop and an ounce or two of my own creativity. The orange light under the moon is the local street lamp filtered through the palm frond- it gives the images a bit of a surreal quality. That one at the top is especially freaky - I've saved it as my desktop wallpaper. The camera I used has a lot of resolution so it's a big image - see what happens when you click on it.

Summary Paper - Lake Worth Station Area "Charrette"

You might remember many posts about the Transit Oriented Development charrette that was held in Lake Worth as part of the Rail-Volution Conference. A team of experts attending this national conference made their way to Lake Worth and focused on the area around our existing Tri-Rail station. The final report has been issued now. I have posted it on a companion website that you can reach by clicking here. Like this blog, you can click on the images and make them larger for easier reading. Since these are jpeg files, you might have to click on them once more when they appear in the new window. I also have a copy of the "Summary Paper" in pdf format, which would be easy to save on your own hard drive and likely be easier to read. If you would like your own copy, I can e-mail one to you. Just let me know through an e-mail to wesblackman@gmail.com.

As I have said before, we were very fortunate to have a group of highly talented and trained professionals in the field of mass transit visit and study a portion of our City. This work ties in nicely with the Master Plan that is in the final stages of completion. It is also consistent with our City's focus on smart growth and green building techniques.

Leadership?

I think we can all agree that one sign of leadership in an elected official is the willingness and ability to make the tough decisions. Tough decisions are usually those that have major implications, are usually controversial and, once made, may not show immediate positive results. Regardless of the decision made, you run the risk of alienating the very people that elected you to that office. However, the test of whether or not that was a good decision may ultimately prove itself over time and create a larger community benefit that shows the worthiness of that decision. And there is always another major decision coming down the pike.

With our system of elections every two years, working for the greater good for the long term can be difficult to achieve. Thus, our elected decision-makers in Lake Worth are looking at how their decisions will play within a relatively short two year (at the maximum) time horizon. Remember, we have a chance to change that January 29th. Besides that, if your ultimate goal is running for another, higher elected position - say the state legislature - then the stakes are higher. Serving the community who elected you to your current position may not be your own first political priority.

In order to keep elected and appointed government officials from ducking their responsibility in the making of decisions, the following provisions were made part of the Florida Statutes:




Let's examine some of the highlighted sections of the above. F.S. 268.012 states that if you are a member of a municipal commission and present at a meeting - you must vote on matters before the governing body and not abstain from voting. The only time that this is allowed is when "there is, or appears to be, a possible conflict of interest" as defined further in the State Statutes.

Now comes our own Mayor Clemens. He has raised the issue that his employment with Morgan Stanley precludes him from voting on Florida Municipal Power Agency (FMPA) issues in relation to Lake Worth because his employer invests in municipal and utility related securities. Certain others have raised this issue in the community as a rallying cry that corruption is rampant within the City (which it may be, but this is not an example of that in my opinion). So, Mayor Clemens, at this most recent December 18th meeting, said that, even though every attorney that he has talked to has told him that since his job does not involve the original underwriting or placement of such securities and that he is essentially a wealth management consultant for certain individuals that there is no conflict of interest, he still plans on not voting on issues related to FMPA.

However, at that meeting, he did vote in favor of bringing in a consultant to help advise the City Commission on decisions related to the City's electric utility. (Which the City Commission should have done long ago anyway).

Mayor Clemens - on this matter it is not a "pick and choose" proposition whether you vote or not.

Let's look at the provision under F.S. 112.313 which states that no officer of an agency (City) have or hold any employment that will create a "continuing or frequently occurring conflict between his or her private interests and the performance of his or her public duties or that would impede the full and faithful discharge of his or her duties." So Mayor Clemens, your real choice, instead of the one related to voting or not voting on FMPA issues, might be more of an issue whether or not you keep your current employment situation or position of Mayor of Lake Worth. That is if you continue to believe that somehow there is an appearance of conflict here. You cannot have it both ways.

Now, one might say that if it was a minor matter, let it pass. However, we are dealing with our electric utility which makes up at least half of our municipal budget (utilities make up about 2/3 of our budget, but also includes water and sewer charges). Our titular leader should not be able to select which items he votes on when there is no conflict of interest! Pandering to the public that rightly is skeptical of things governmental is not the way a leader should act. Education of the public as to the legal framework in which elected officials operate is the proper role of a leader. Making important, sometimes difficult decisions, is another mark of a leader.

Time to Catch Up

I haven't had a lot of extra time to post here for a while, but that is changing now as the week winds down. You might have noticed a little "widget" on the right hand side of the page. It's a cool gizmo that does a couple of things.

One is that it shows the world in "real time" - that is it shows which areas of the earth are experiencing day and night. At night, the white areas are reflected light from urban areas around the globe. This is important since you might gain the perception here in Lake Worth that we are somehow the only urbanized area on the planet and a dense one at that! Just a little reminder that we do share this globe with 6.6 billion other human beings.

Another thing that it does is that it shows where you happen to be when you log on to the site. For example, if you happened to be on vacation in Madagascar, and were lucky enough to find an Internet connection, a little red beacon would show off the southeast coast of Africa. When you left the site, a little yellow dot would remain showing that someone visited from that area. That dot is left for others to see as they visit the site.

Regarding the yellow dots, those are where the "hits" to this blog have come from since plugging in this widget last Friday. The size of the dot reflects the number of hits from that area of the planet. There are a lot of different ways that Internet access is routed so there is some "rounding error" as to the exact location of the computer being used to access this site and where it is recorded, but it still gives a general overview and indication of where traffic is coming from.

Finally, by clicking on the widget itself, you can bring up a larger, zoomed in picture of the world map. Make sure you disable your pop-up blocker for this site if you want to try this. There you can "mouse over" the various yellow dots and see the name of the area from where people have accessed the site. You can also click to see a list of current visitors and another for historical visitors - at least their locations.

Hope you have fun with this and it always is good to remind ourselves of the larger world around us.

Future post forecast: Eco-density, the Mayor removing himself from voting on FMPA matters, Commissioner Golden's "canned" presentation at this week's City Commission meeting and an update on Hammon Park. And, if there is a time when you are hungering for material on Lake Worth, remember that there are over 450 posts on this site dating back to May of 2006. You can use the search function - a popular one happens to be "sunset" - I wonder why? (not really). You can also peruse the posts by category or review posts by month. I am planning on doing something "BIG" to celebrate the 500th post on here - if you have any ideas, let me know.

Again, thanks for visiting and Happy Holidays!!

Fun with Puppets!

Inspired by last night's Commission meeting.

B.C.

Tips for a Happy and Safe Holiday

During the year-end Holidays, people are busy, excited and sometimes careless. By making this holiday season safer, it will also be more enjoyable.

Be cautious about locking doors and windows when you leave your house, apartment or condo, even if you are leaving for a few minutes. It only takes a few minutes to become the victim of a burglary or theft.

We all like to leave our curtains open to display our beautiful tree sparkling in our front window. That’s fine, but please don’t put your gift-wrapped packages under the tree until Christmas Eve. A thief walking your neighborhood can look in and make a mental note of all of the gifts, and come back when your house is not occupied, which brings up another point. Always make your house look occupied when leaving. Put lights on times and leave a radio or television on.

On Christmas day, don’t leave the boxes from your new gifts on the curb for trash pickup. Cut them up and place them inside or your garbage pail or recycle bin. Don’t advertise your new TV’s, VCR’s, or computers in the house.

If possible, shop before dark and try to coordinate shopping trips with a friend. Never park in an unlit lot or area, no matter how convenient it is. Lock your packages and gifts in your vehicle’s trunk. Never leave them on the back seat where they can be viewed by passerby. Try to avoid leaving the store with an Arm-Load of gifts, placing them in the trunk and then going back into the store. Someone in the parking lot could be watching! They now know that there are gifts in the trunk and could attempt to break in while you are back inside the store. If you must go back in, place the packages inside the trunk, get into your car and drive off, and then park again on the other side of the mall.

Avoid carrying large amounts of cash. Pay for purchases with a check, credit card, or debit card when possible. Don’t carry more checks or credit cards then are actually needed.

“To discourage purse-snatchers, do not over-burden yourself with packages”. Use handbags that have a zipper and locking flap, and carry them securely with the flap close to your body. Carry wallets inside your coat or side trouser pocket; never carry them in your back pants pocket unless you have a button or some way to secure that pocket. Place a rubber band around your wallet or money clip so that you can feel it if a pickpocket attempts to remove it.

While checking out at store registers, shield your credit card from people around you. Someone might attempt to get your credit card number. Save your credit card receipts to compare with your billing statements. Carry your credit cards in a separate zippered compartment in your purse, not just as holiday time, but all the time.

Be cautious when using an ATM. At a drive-up ATM, keep all the windows closed, except the one you are using, and all the vehicles doors locked. If you drive to the ATM and then exit your vehicle to use the ATM lock all of your doors and keep your keys handy so that you can re-enter your vehicle quickly. Al alert for anything suspicious, especially two or more people in a nearby vehicle, particularly if no one else is at the ATM, or someone appears to be hanging around the area. Never approach an ATM if the lights at the site are not working. If you are using an ATM after dark, take a friend along. Have the friend sit in the car with the vehicle running and park it as close to the ATM as possible in a well lighted area. Try not to use an ATM if there are large bushes or obstructions that someone could possibly hide behind.

When having friends and family over for the holidays, make sure to have non-alcoholic beverages on hand for the designated drivers. We all want to be the perfect hosts. When we see a guest with a half-empty glass, we immediately want to replenish the drink. Don’t push drinks. People don’t need to drink in order to have a good time. Some guests may not wish to appear rude, and will accept drinks they don’t want. Don’t let guests mix their own drinks. Have one person serving the drinks and have that person try to keep track of the size and number of drinks that guests consume. Stop serving alcohol 90 minutes before the party ends. Serve a great dessert with coffee. Remember, coffee won’t sober up your friends, but time will. As your party breaks up and guests are leaving, encourage them to wear their seat belts and be alert for impaired drivers.

Let’s work together for a safe and happy holiday season.

Joel Morganstern

Lake Worth Police Department

Crime Prevention Specialist (COP Coordinator)

Some "Great" Moments...

E-Mail from City of Lake Worth - Temporary Closing of Library

The Lake Worth Public Library will be closed Tuesday, Wednesday and Thursday, December 18th, 19th, and 20th for the installation of a new air handler inside the library. We apologize for any inconvenience this may cause. Please return all books and materials in the drops on the library's front porch.

Thank you,

Vickie Joslin
Librarian III
Lake Worth Public Library
15 North M St.