As many people of Cocoa Beach know, a group of residents threatened to file a lawsuit against the City for the variance issued in the Ocean Dunes Condo case that we covered extensively.
The group followed through with that promise and did indeed file a lawsuit. However, both Commissioner Malick (who is running for Mayor of the Cocoa Beach) and Acting City Manager Holland have made public and private statements that the lawsuit has been dismissed.
(Technically, this is an appeal of an administrative decision, so we will use the correct terminology of “appeal,” rather than “lawsuit.”)
In many ways, the handling of the variance and the resulting appeal is having a political impact on the elections. The variance is a topic that is often raised at forums and in discussions with the candidates. The response from Malik and Holland that the appeal has been dismissed seems to justify the position the City took in the case and the votes of Commissioners Malik, Martinez, Miller and Mayor Tumulty to pass the variance.
However, there is a problem.
The appeal has not been dismissed.
It is alive and well and chugging along within the legal system.
The fact that Malik and Holland would make statements that the appeal has been dismissed shows either a lack of awareness of the facts or a willingness to lie. We don’t know which one, but we do know neither reflects well on the City and them as individuals.
With a lot of help from a lot of people who dug around, here’s the unvarnished truth about the appeal:
1) The variance request had to go through several Boards and finally the City Commission. The last step in approving the variance was a Commission meeting on July 21, 2016.
2) Once the variance was granted, the clock started ticking for any appeal. By law, the appeal had to be filed within 30 days.
3) On August 19, 2016, the appeal was filed and the filing was within the 30 day requirement. (See here for initial record of the appeal.)
4) If you look at the referenced web page there is a menu to the left. If one clicks on “Register of Actions,” you can see all that is going on in the case.
5) On September 29, 2016 there is a somewhat troubling notice that reads “ER:CV ORD DISMISSING PETITION.” That would seem to indicate that the case had been dismissed and was dead, but that’s not what the actual order reads.
6) The Court issued that dismissal order on the basis that the plaintiffs somehow failed to comply with Rule 9.100 Florida Rules of Appellate Procedure. (See page 25 at the link for the actual rule in question.) The dismissal order was made “without prejudice.”
7) The dismissal order was procedural, meaning the original complaint simply failed to comply with the standard of an initial pleading in its form and was not dismissed on the basis of any finding of facts. As is customary, the Court gave the plaintiffs and their counsel time to amend (correct) the initial complaint. In this case, the time given was 15 days.
8) The amended complaint was filed on October 12, 2016, well within the time frame set by the Courts. Here is the amended complaint:
9) Once all the proper pleadings have been filed (response to the complaint, response to the response, etc.,) the case will be argued before a three Circuit Court Judge Panel. Because all the pleadings have not been filed, the date for that hearing has not been set, but we will try and keep you up to date on when it takes place in case you want to go to see it in person.
The bottom line is that of this date, the Appeal of the issuance of the variance for the Ocean Dunes Condo project is still in the system and has not been dismissed or decided.
We want to highlight some of the points of the appeal:
1) The appeal is clear that the City Staff did not apply the correct standards of review of the application for the variance and instead made up their own rules, rules which were contrary to the law.
2) The “hardship” claim made by the petitioners for the variance were all self-inflicted. Design choices do not make a legal, credible claim for a hardship.
3) We often thought that the idea of “more profit” was not a good basis for a variance, the appeal has actual case law on the subject. If you remember, part of the case presented for the appeal was based on the amount of profit and saleability of the condos themselves.
Point by blistering point, the complaint dismantles the reasons the Staff and others supported the variance.
And then there is this from page 15:
However, at page 61 [of the record,] Mayor Tumulty made a cunous statement. Mr. Tumulty stated that: “There are several of us running for office. There are several in the audience that are running for office. There are several folks that are running for office that aren’t here tonight. I don’t know any of them that don’t agree with
this variance. Not one – – well, I take that back. Sorry. There’s one and I apologize. But there’s only one. And I’ve spoken with each and every one of them and they are all for the variance. So you’re going to have a hard time voting for someone that’s not for this variance.”
Given that Florida Statute Section 286.011 prohibits any member of a sitting board or commission to meet with any other member ofthat hoard or commission to discuss matters that may come before that board, and states that any member of the board who violates that provision is guilty of misdemeanor of the second degree, it appears that Mayor Tumulty has admitted to a violation of Florida Statutes, which are punishable by fine and imprisonment. This is a curious admission against interests that undersigned counsel never expected to hear at a public meeting. It also indicates that there may have been improper off the record discussions in this matter.
At the time Tumulty made the statement, many people noted the same thing – that Tumulty would have had to talked “out of school” with other Commissioners to know how they would have voted. While Tumulty tried to walk back his comments later on, it was clear that at the very least, his comments and actions were improper if not down right illegal.
So there you have it. The whole story on the appeal, some analysis of its content, and the undeniable fact that the appeal is alive and well within the legal system.
Our thanks to the ninjas who did some leg work on this and to the Office of the Brevard County Clerk of the Courts whose responses to inquiries were not only informative and extremely useful, but made at blinding speed. We deal with a lot of agencies gathering information and no one has has been faster, better or more polite than the Clerk’s Office.