LAW FOR SALE

Issue 62 Rohe Cartoon Wolf Dreding

There it was, a 100’ long wooden dock, all ready for the sport fishing boats belonging to the owners of the eight new mansions nestled between the palm trees and the tropical flowers. The only problem was, no boats could get to the dock!  There was simply not enough water covering the seagrass bed surrounding Walker’s Island and the necessary dredging operation was strictly prohibited by the Monroe County code.

So, was that the end of it?  Well, not quite.  Beginning in 2010 savvy developers and their lawyers discovered a little-known loophole; a way around Monroe County’s tight environmental regulations. For a $ 5,000 application fee, a developer can write his own version of the law and, after proper lobbying, force the County Commission to vote on whether to reject or adopt his “Comprehensive Plan Text Amendment.”

Several County Commission members, including Commissioner Danny Kolhage and Mayor Sylvia Murphy, have expressed concern over the process and the amount of time expended by County staff on these private legislation projects.

“I was horrified,” said Mayor Murphy, “ when I heard staff had spent two years working on the Walker’s Island dredging project without the public or the Commission knowing anything about it.”

The practice reached a high level of criticism four years ago when Roger Bernstein first used the new process to try to design a special law applicable only to Wisteria Island.  The development of Wisteria Island was initially disguised as a project meant to furnish bathrooms and other amenities for a mooring field:

and the mooring field itself was described as a generous offer by Roger Bernstein to help Monroe County tackle its derelict vessel problem:
In exchange for the rights to the deep water baybottom between Sunset Key and Wisteria Island, Bernstein would donate an area of flats called Frankford Bank to the State, build a mooring field around Wisteria Island and use the newly acquired baybottom rights to pass sewer, electricity, and water from Sunset Key to Wisteria Island in order to operate the mooring field bathrooms. Oh, and of course, one more little detail, in order to operate the mooring field, the island designation would have to switch from the standard Residential Conservation designation for offshore islands [allowing 1 house for every 10 acres] to “Mixed-Use Commercial”. [ie. Everything Goes]

Initially, Monroe County staff fell for it.  “I want the mooring field,” said Monroe County Growth Management Director Christine Hurley at the time.  But, to no one’s great surprise, once the whole mooring field project was clearly decoded, it hid an 85-unit hotel complex, 35 luxury single-family homes, a restaurant, a retail store, and an exclusive marina big enough for a casino boat.  The farce created a huge backlash from the public.

Similarly, the Walker’s Island project was initially presented by its owners as a “seagrass restoration project”.  That was the code name for an extensive dredging project.  That misrepresentation resulted in only three people showing up at a community meeting organized by Sandra Walters, the PR consultant for the Walker’s Island project.  One of the attendees was County Mayor Sylvia Murphy. “What did you expect, Sandra,” said Murphy, “You advertized your meeting as a seagrass restoration project, not a dredging project. You’re playing with people, you’re playing with words and that’s not fair.”

However, here again the Monroe County staff supported the amendment to the comprehensive plan even though the Commission later unanimously rejected the Walker’s Island dredging amendment. Danny Kolhage commended staff for their hard work “making this as palatable as possible” but also voted to reject the dredging amendment.

So, why did staff support a concept as unpopular as allowing dredging of seagrass meadows in the Keys?  Kolhage explained it a few months later, saying there is a culture in county government that promotes customer satisfaction.  We should certainly be thankful for a positive attitude, however many complain that the process for private text amendments is completely unbalanced and can not possibly result in fair legislation.

“By the time we heard about what was going on,” says Dottie Moses, who opposed the dredging project on Walker’s Island on behalf of the Key Largo Federation of Home Owners, “the developers and Monroe County staff had already been working on this for a full two years and nobody, not even the Commission, knew about it.  It took us five months just to get up to speed.” Moses says she spent countless hours conducting research to address the many misconceptions created by the developers.  She even cancelled a personal trip just so she could have her five minutes to explain her findings during the County Commission meeting.

During the negotiations about dredging an access channel to this 100’ dock, County staff was unable to determine whether the dock had even been built with a proper permit. The developer’s agent assured the Commission the dock was legal by flashing a document in front of the Commissioners just minutes before the vote.   In fact, not only was the document shown to the Commission not a permit, but it did not even mention a dock. It apparently referred to a permit for “holding pens” and it was later determined the dock on Walker’s Island had been found to be unlawful in 1973 by the Florida Department of Pollution Control.

“That is the part that is so crazy,” says Deb Curlee, Vice President of Last Stand, “How could we expect that developers, who have so much to gain financially in deregulating land use, would be good stewards of the public interest?  And yet, the County Commission has to listen to them and their lawyers for as long as it takes; saying just about anything to win the day and if the truth is on the side of a public speaker, he or she has only three minutes to dispel any delusions.”

County Mayor Sylvia Murphy is in favor of some practical solutions:

1] Favor Variances Over Text Amendments:

“I am not a lawyer and I am not a professional planner,” says Mayor Murphy, “but it seems to me that what we are doing with those individual text amendments is spot zoning.  We don’t want to call it that because spot zoning has such a bad connotation.  Maybe the proper way to address these issues is through a variance process.  I would like to go with a method that provides the most protection to the neighbors and that seems to be the variance system which gives the neighbors the strongest right to object.”

2] Bifurcating the Creation of County-Wide Text Amendments and the Specifics of a Particular Project.

Mayor Murphy believes there should be two distinct processes; one for a change in law that applies to everyone in the County and another to address whether one property owner qualifies under the new law.

Commissioner Heather Caruthers agreed with that concept during the Walker’s Island discussion.  After all Commissioners had taken positions against relaxing the dredging prohibitions, Caruthers noted,  “I would actually want to bifurcate this resolution and not even consider at this point the specific subarea for Walker’s Island…”:

3] Immediate Public Notice and Initial Head-Nod By the County Commission:

“As was the case with Wisteria Island, when we asked whether the $ 5,000 application fee actually covered the County’s costs in the Walker’s Island project, we received a resounding ‘no’ from staff.”

“If we continue to accept these private applications for text amendments, we need to have immediate public notice and if staff gets a request for a text amendment and it looks like they’re going to spend more than 10 hours or so in a two-week period on it, then they should not touch it without first coming to the Commission and getting a go-ahead. Why go to all that trouble if neither the public nor the Commission are interested in doing it? I’d like to see that requirement codified.”

Christine Hurley, Monroe County’s Growth Management Director, has said the right of a property owner to apply for a Comprehensive Plan text amendment is protected by the Growth Management Act [Florida Statute 163].  However, the statute, which does not specifically mention applications for “text amendments”, arguably, was intended merely to allow property owners to challenge incorrect zoning of their property, which would indeed, if successful, require an amendment to the detailed zoning maps that are a part of the overall Comprehensive Plan.

Julie Dick, an attorney working with the environmental watchdog group Last Stand, wrote in a recent letter submitted to the Commission, “we believe in requiring a recommendation of the Planning Commission and Board of County Commissioners to initiate a text amendment.”

In Monroe County even an elected County Commissioner needs a  ‘second’ to force a vote of the Commission and the public at large doesn’t even have a right to put a referendum on the ballot, no matter how many signatures they are able to gather. So why should one man, with enough money to spend, have the right to force the County Commission to vote on whatever new law suits him?

This whole thing certainly doesn’t feel like the “equal protection of the law” guaranteed by the Constitution.  It does however have a strangely backwards flavor from the time when, by the grace of the King, aristocrats would receive special privileges, like the right to remain seated in the Queen’s presence or the right to sell pork on Fridays.

The County Commission will debate the issue on May 22, 2014 at the Marathon Government Center during a special Comprehensive Plan Update meeting, which begins at 10:00 am.

Key West The Newspaper [The Blue Paper] encourages spirited, open debate in comments on our stories. We do ask that you refrain from profanity, personal attacks and remarks that are off point. Please join the conversation!

8 comments on “LAW FOR SALE

  1. Another astounding expos’e. Good going. How about looking into the “sole source” , no bid purchase of the grinder pumps and the whole messy,( I could use a different word), FKAA , DEP, scheme to use this grinder pump sewer system?

    • The grinder pump fiasco is the stuff of a John Grisham novel. The full putrid scope of what transpired on the Cudjoe Regional Wastewater System (CRWS) and its impact on the environment will eventually surface (pardon the pun). That certain public officials are well aware of the house-of-cards engineering of the CRWS is shameful.

  2. Excellent article.

    I attended a number of Wisteria development meetings before the County Planning Department.

    I kept saying the developer should be charged for what he was costing county taxpayers in county staff and building and office time. I kept asking county staff why where were working for the developer, instead of for the county and the county taxpayers?

    I kept asking county staff why they were even entertaining the Wisteria application, when everyone knew the entire deal hinged on Key West coming on board?

    The development would need to use Key West’s sewer collection system and treatment plant, and the city’s fire and police, and the city’s drinking water, and city parking spaces.

    I kept saying the Wisteria application should be put on hold until Key West came aboard.

    I kept telling county staff that they and the developer were trying to do an end run around the Key West 2007 referendum, which passed overwhelmingly, requiring a voter referendum for Key West to annex or acquire real estate.

    I kept telling county staff they and the developer were trying to bring off a de facto annexation of Wisteria by Key West, by first getting the County Commission to approve the development, which would pressure Key West to go along with it, by providing the needed city services, without actually annexing Wisteria.

    I published several articles about all of that at http://www.goodmorningfloridakeys.com.

    Eventually there came a county commission meeting in the Marathon Government center, attended only by Commissioners Sylvia Murphy, Kim Wigington and Heather Carruthers, Commissioners George Neugent and Mario Di Gennaro were elsewhere that day,

    Sylvia told Christine Hurley and county staff that she was not going to do anything on Wisteria until she knew Key West’s position. Sylvia told Christine to tell Key West the County Commission wanted to hear from Key West. I attended that meeting, witnessed what you just read.

    So notified, the Key West City Commission met specially to take up Wisteria Island. They met the day before the County Commission was to take up the Wisteria application at the Harvey Government Center in Key West.

    I attended that city commission meeting. Sylvia Murphy attended. She was invited to speak to the City Commission. She told them that she want to be a good neighbor. She wanted to know Key West’s position on Wisteria. The City Commission told her via a unanimous vote that they didn’t want to participate in the development of Wisteria.

    The Wisteria developer notified county staff – Christine Hurley’s office before the next morning’s County Commission hearing, that they were withdrawing the Wisteria application. The item was pulled form that day’s County Commission agenda.

    Eventually, the Bernsteins brought another Wisteria application back to the county, and not long ago the County Commission declined to go along with it. Even as who owned Wisteria was still tied up in Federal Court? Why would County Staff even entertain that application, when they did not know who owned Wisteria?

    I can’t possibly imagine how much taxpayer money was wasted because the Bernsteins did not have to pay the full cost of their maneuvers.

    The Walker Island development scheme was similar. Christine Hurley and her staff went over to the developer, as they had gone over to the Wisteria developer. Dottie Moses and other members of La Resistance sniffed that out and woke the County Commission up, after some of the commissioners had already given the developer a nod that it was a go.

    For example, Commissioner David Rice said at the county commission meeting where the Walker Island application met its demise, that he had been in favor of the dredging application, but after studying up on sea grass replacement, he learned it was a toss up who to believe and how reliable it was, so he was changing his position.

    Sylvia Murphy said she didn’t see dredging that channel would do significant environmental damage in the big scheme of things, but it was the camel putting its nose under the tent. Next thing, the camel is all the way in the tent. She didn’t want to set that precedent for more dredging applications, No was her vote.

    I attended that county commission meeting. What no county commissioner nor county staff said:

    the developer was a rich mainland doctor, who had a vacation home not on Walker Island. He wanted to dredge a channel into Walker Island so rich people, who rented the big posh transient rental houses he had gotten permits to build on the island, would be able to bring their yachts into the island, instead of take them into existing marinas.

    I dunno. Maybe making developers pay the full cost of their development applications is just as needed as closing that loop hole, which allows developers to bring their own private legislation proposals.

    Jim Hendrick came to me in a dream before dawn this morning. I awoke knowing something about him was on my plate today. But what? I knew what, when I read this blue paper article.

    Jim was, is, the Bernstein’s Wisteria field general. His arguments won over county staff, got them to representing the Bernsteins, instead of the county government and the county taxpayers.

    Jim represents the Peary Court developer. And he is Pritam Singh’s field general. And other Florida Keys developers’ field general. Closing that county loop hole is a good idea, too.

    • Just one point of clarification: The County did not entertain any applications after the question of ownership became official. Once the BLM announced that the US claimed the island in 2011, the County ceased processing a pending appliction for a text amendment that aimed to create a new zoning category especially crafted for Wisteria as well as the County’s own administrative process, that was running simultateously, of assigning to Wisteria the standard Future Land Use Map category assigned to all offshore islands: Residential Conservation. Recently, as a part of the Comp PLan Update process Roger Bernstein and his attorney addressed the Board and urged them to create a new definition in the Comp Plan ["Resort Island"] meant to define Wisteria Island and which would have made it so that all of the regulations pertaining to offshore islands found in the Comp Plan and the County Code would not apply to Wisteria Island. [For example, even if it were shown that Wisteria were a bird rookery development would be allowed on Wisteria.] That was not an application, it was just the County allowing any member of the public to participate fully in the Comp Plan Update process. The County did not take Bernstein up on his idea. Meanwhile we await Judge Martinez’ determination in the Federal ownership dispute which we can expect to continue up the appeal process for years to come.

    • I attended EVERY meeting associated with the Wisteria Island battle – County Planning, County Commission, Key West Commission and other I can’t remember. Sloan you are vey correct about the Bernsteins costing tax payers a fortune in staff time associated with their little failed project. It seems I recall they paid some kind of $5000 fee, I could be wrong but whatever it was, it was incidental compared to the true costs. These staff costs were a matter of discussion back then. I had thought County staff changed their fee structure, and I distinctly recall Mark Rossi speaking up about the cost of City (Key West) staff time, and the cost to tax payers. Mark the watchdog of the city budget gets it BUT has the city done ANYthing to change the fee structure? With 130 projects on city staff plates I sadly doubt it. As several big dogs on staff tell me…’kicking the can down the road’. And once again the 1% , though I don’t consider Benrstein a 1%er…the big dogs get a free ride and the taxpayers just bend over! When is everyone going to get sick of it and do something?

  3. Ahh…more one percenter shenanigans…No surprise these privileged and entitled dirt bags think they can get away with murder…They so often do.

  4. ” think they can get away with murder…They so often do.”

    Well so far they have in the Eimers case it seems. Then there’s the Navy with their flawed Environmental Statement on the F 35 , and DEP/ FKAA never rhinking about the flawed engineering and environmental impacts of their low pressure grinder pumps and ignoring the law , and let’s not forget the HOB height fiasco. I could go on – and on. Yes we’ll see toowhat they try to pul lat Peary Court . WE have to obey the laws , but they seem to think they are immune , eh?

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