Fool me once
GENE JALESKI
Guest Columnist
opinion@lbknews.com
This week a three-judge appeals tribunal handed the Longboat Key Commission a stunning defeat. The town lawyer’s land-use litigation losing streak remains intact. The town might finally look elsewhere for legal advice. The primary duty of a municipal attorney is to keep that municipality out of expensive court proceedings, especially if the municipality will lose.
The latest appeals court loss may expose the town to lawsuits and costly litigation from property owners who have been denied unfettered access to the real estate markets due the town’s ill-advised legal gambits against its own residents.
Circuit Court Judge Charles Roberts, and now the Second District Court of Appeals, have ruled that the LBK commissioners broke the law when they zealously advanced the interests of the Key Club. Bob White and the members of IPOC are to be congratulated for their unflinching conviction that the Town Commission had violated the property owner’s legal rights.
Those on the commission and the town’s previous planning director who opposed the Key Club expansion as being inappropriate and needlessly dense have been vindicated. It has been stated before: I was always in favor of improvements at the Key Club, but not at the expense of surrounding property owners.
While on the commission, I requested that the commissioners retain an outside, disinterested land use attorney to advise the commission concerning the Key Club proposal. I had lost faith in the two lawyers retained by the town. At that time I expressed my doubts that the town was on firm legal footing if they approved the Key Club expansion. Unfortunately, there was no support for this proposal, most especially from the town lawyer. If the commission had insisted that the Key Club proposal be adjusted to the point where the surrounding community was comfortable, the Key Club expansion would already be in its third year and close to being completed. Instead we have had a paralyzed real estate market on the south end. Who in their right mind would not be cautious about investing while there was a lawsuit pending on the property?
Unfortunately for our residents, this commission will try to get around this resounding slam by the Florida courts by shamelessly gutting our Comprehensive Plan and those building codes needing change to specifically address the Key Club expansion. If the commissioners once again look to the town lawyer’s advice, they should also look at his win-loss record in land-use litigation he has managed on behalf of our community.
If the new Key Club owners really want to add value for themselves and for our community, they should work with the affected property owners and the commission to create a win-win design that is more appropriate for Longboat Key, keeps the process out of the courts and hastens the completion of the entire process.
The town could now retain an expert land use attorney to advise the town how to avoid another court defeat that could be even more destructive to our property owners that the most recent rout. There is that old saying: “Fool me once, shame on you. Fool me twice, shame on me.”
This commission, and sadly Longboat Key, will now be immortalized in the law journals and legal precedents citations as a goat rodeo. We can do better than that. We need some changes and we need them before more damage is done.
The courts have now rebuked the Longboat Key commission for leaving the reservation and acting as if they were a bunch of cowboys above the law.
The courts have chastened those commissioners, past and present, who attempted to justify spot zoning as a means of adding value to Loeb Partners Longboat Key Club properties.
I caution the same people that a thinly veiled end-run around the spirit of the law will most likely draw the same ire from the Florida courts.
People who invest in a well-defined PUD have inalienable rights similar to members of condominium associations and “common areas”.
Small towns frequently lack the in-house expertise to cope with complex tasks. This is to be expected. Problems arise when small town officials fail to grasp their own limitations.
Link to recent Florida court ruling on PUD member’s rights and privileges:
http://lawoftheland.wordpress.com/2012/07/05/fed-dist-court-in-fl-holds-pud-governing-documents-do-not-permit-cell-towers/
http://www.lbknews.com/2011/04/18/town-attorney-responds-to-criticisms-surrounding-key-club-plan/
“As town attorney, my job is to recommend what can and cannot be done”
Somehow the town lawyer failed to understand what legally can be done under Florida law. The taxpayers of Longboat Key paid the town lawyer hundreds of thousands of dollars a year for competent legal services. If it had been a narrow, split decision on one or two of the seven complaints raised by Judge Roberts, that might have been understandable. Instead the appeals court found the town wanting on every count and by a unanimous decision. This should not have happened given how much we pay for legal advice.
Gene: Why don’t you just settle on a topic and decide what and where you wish people to believe you’re an expert. This week it appears to be practicing law. There’s a year-round law school out in Washington state that’s calling your name for the next three years. But don’t worry, you can always mail it in, like other ‘opinion shapers’ in places far, far away. If the left coast is too far, there’s State College, PA where you’ll be in like company.
John Wild, I wish there was only one topic of concern troubling our community. Unfortunately there are many. Since we live in a free society people are free to decide if they wish to read editorials or live beneath a rock.
John, if I was you, I would hesitate to get into a popularity contest with Al Green. I think you would lose.
I am glad that you at least read my opinion pieces. Most people who respond do so with additional perspectives. You on the other hand favor spitballs it seems.
Please note that I include supporting factual information and I always try to offer a constructive alternative instead of spewing out useless sarcasm and bile.
I will assume from your frothy response to my plea for better government, that you are a staunch supporter of the town lawyer.
Lastly, I reread my articles and comments. I was unable to find any declarations of expertise. Does one need to be an expert to see the Emperor’s New Clothes? I did include several citations from court proceedings and ask the readers to judge for themselves. What do you think about the two court rulings concerning the Key Club and the actions of the town commission and town lawyer?
Perhaps the most compelling reason, among many, for my resignation from the town commission was fear of getting sued for illegal activities and having to defend myself in court at my expense. I am not a lawyer, but you will remember that I stated that what the commission was doing was over-the-top and I wanted an outside legal opinion. I was upset that a group of people would not listen to what was really happening. Last week they were reminded.
As a Florida attorney, and owner in Longboat Key, I can state the law is very clear on statutory interpretation. Having read the opinion of the 2d DCA, it is well reasoned. And the reason, in part, why the law is firm on statutory interpretation is to avoid violations of due process of law, procedurally and substantively. We should all be entitled to rely upon a law as written on the books, not arbitrary interpretations by a person or entity when it is in his/her/its benefit to do so. When it comes to the practice of law, politics should be removed so that objective advice may be provided. But in the end, and hopefully every attorney discloses the pros and cons of any position the client wishes to take, the decision rests with the client.