HomeMy WebLinkAboutKeewin Real Property Co. LLC City's Renewed Motion for Sanctions - 2007 03 14
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STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
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MAR 2 0 2007
HIGHLANDS HOMEOWNERS' ASSOCIATION,
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Petitioner,
v.
DOAH: Case No. 06-3946GM
DCA Docket No. 06-1-NOI-5908-(A)-(1)
DEPARTMENT OF COMMUNITY AFFAIRS
and CITY OF WINTER SPRINGS, FLORIDA,
Respondents.
and
KEEWIN REAL PROPERTY COMPANY, LLC,
Intervenor,
CITY'S RENEWED MOTION FOR SANCTIONS
Pursuant to sections 120.569(2) and 163.3184(12), Florida Statutes, the
Respondent, City of Winter Springs, moves for an award of its attorney's fees and costs
as sanctions against Petitioner, Highlands Homeowner's Association, and its attorneys, for
the frivolous nature and improper purpose behind the filing of its Amended Petition
("Petition") and responses to discovery which caused the City undue delay and expense.
The basis for this motion is the complete lack of factual and legal foundation for the
Petition. Further, the public interest supports this motion because the City has had to
employ significant resources, and incur significant fees and costs, on behalf of the
taxpayers of Winter Springs in order to defend against this frivolous Petition, including
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engaging in needless investigation and discovery based on evasive and untrue responses
provided by Petitioner during discovery.
I. PROCEDURAL BACKGROUND
The City of Winter Springs amended its Future Land Use Map to change the subject
property from Industrial to Medium Density Residential (MDR). There was no
accompanying change to the text of the Comprehensive Plan. The subject property is
vacant and carries an Industrial land use and PUD zoning. The surrounding land uses are
MDR, low density residential, industrial and commercial. Petitioner, Highlands HOA, owns
property to the east of the subject, which is designated MDR. Petitioner challenged the
amendment based on compatibility, need, schools, roads, recreational facilities, and
alleged violations of various provisions of Florida Administrative Code Rule Chapter 9J-5
and Chapter 163, Part II, Florida Statutes.
Priorto the final hearing in this case, the City and Keewin filed motions for sanctions
against Petitioner based on sections 120.595(1)(e)(1), 120.569(2)(e), and 163.3184(12),
Florida Statutes. The final hearing in this matter was held on November 29, 2006. A
Recommended Orderwas entered on January 3,2007, finding in favor of the Respondents
and Intervenor on all claims and finding the comprehensive plan amendment to be in
compliance. In the Recommended Order, the judge reserved jurisdiction to determine the
motions for sanctions under sections 120.569(2)(e) and 163.3184(12), Florida Statutes,
and allowed Respondent and Intervenor the opportunity to renew their motions for
sanctions based on sections 120.569(2)(e) and 163.3184(12), Florida Statutes within 30
days after the Final Order was entered. No exceptions to the Recommended Order were
filed.
Page 2 of 21
A Final Order was entered on February 16, 2007, which adopted the Recommended
Order.
Pursuant to the Recommended Order, the City moves for sanctions against
Petitioner and its attorneys under sections 120.569(2)(e) and 163.3184(12), Florida
Statutes.
II. STANDARD FOR AWARD OF SANCTIONS
In the Recommended Order, the judge did analyze and make a decision on the
request for sanctions under section 120.595(1), Florida Statutes. However, that standard
is different from the standard under which the City now seeks sanctions.
Section 120.595 awards reasonable costs and attorney's fees to the prevailing party
where the nonprevailing party has been determined to have participated in the proceeding
for an improper purpose, as defined in this subsection:
(e) For the purpose of this subsection:
1. "Improper purpose" means participation in a proceeding pursuant to s.
120.57(1) primarily to harass or to cause unnecessary delay or for frivolous
purpose orto needlessly increase the cost of litigation, licensing, or securing
the approval of an activity. (Emphasis added).
The Recommended Order acknowledged that Petitioner's evidence at the hearing
was "inadequate and insufficient under applicable statutes and rules." Nevertheless, the
judge determined that because the case was on a fast track and the Petitioner "did present
some evidence, albeit minimal", he did not find that the Petitioner's "primary motive in filing
its Petition was to simply harass the City or developer, delay the project. . . or needlessly
increase the cost of litigation for those parties" as set forth in section 120.595(1), Florida
Statutes. (Emphasis in original). The judge emphasized the more difficult standard in
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section 120.595(1) and allowed the City to proceed under the provisions setting forth the
less stringent standards in sections 163.3184(12) and 120.569(2)(e).
The standard for an award of prevailing party attorney's fees under section 120.595,
Florida Statutes, is different from and more stringent than the standard for an award of
sanctions under sections 163.3184(12) and 120.569(2)(e), Florida Statutes.
Section 163.3184, Florida Statutes sets forth the process for adoption of a comprehensive
plan amendment and includes the process for an affected person to file a petition
challenging a determination that a plan amendment is in compliance. When a petition is
filed, section 163.3184(12) provides that the party signing the petition, or any motion or
other paper, certifies that it is not interposed for any improper purpose:
(12) GOOD FAITH FILlNG.--The signature of an attorney or party constitutes
a certificate that he or she has read the pleading, motion, or other paper and
that, to the best of his or her knowledge, information, and belief formed after
reasonable inquiry, it is not interposed for any improper purpose, such as
to harass or to cause unnecessary delay, or for economic advantage,
competitive reasons, or frivolous purposes or needless increase in the cost
of litigation (emphasis added).
Similarly, section 120.569(2)(e), Florida Statutes provides:
e) All pleadings, motions, or other papers filed in the proceeding must be
signed by the party, the party's attorney, or the party's qualified
representative. The signature constitutes a certificate that the person has
read the pleading, motion, or other paper and that, based upon reasonable
inauiry, it is not interposed for any improper purposes, such as to harass
or to cause unnecessary delay, or for frivolous purpose or needless increase
in the cost of litigation.
The provisions of section 120.569, Florida Statutes apply in all proceedings in which
the substantial interests of a party are determined by an agency. ~ 120.569(1), Fla. Stat.
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The City contends that the Amended Petition violates sections 163.3184(12) and
120.569(2)(e), Florida Statutes. The Amended Petition was signed by attorneys Joy
Carney and Russell Klemm of Clayton & McCulloh, representing Highlands Homeowners'
Association.
A. lack of Reasonable Inquiry
There is abundant evidence in the record that neither Petitioner nor its attorneys
made reasonable inquiry into the justifiable basis for this Petition prior to filing the Petition.
Under existing case law, "an objective standard is used to determine 'improper
purpose' for the imposition of sanctions on a party or attorney under subsection
120.569(2)(e), Florida Statutes (2004), and predecessor statutes." Lee County School
Board v. Vandeventer, 2005 WL 3733830 (Fla. Div. Admin. Hrgs.), at p. 18. Courts need
not "delve into an attorney's or party's subjective intent or into a good faith-bad faith
analysis." Friends of Nassau County Inc. v. Nassau County, 752 So. 2d 42,50 (Fla. 1st
DCA 2000). In Procacci Commercial Realty Inc. v. Department of Health and Rehabilitative
Services, 690 So. 2d 603, 608 n.9 (Fla. 1st DCA 1997), the court stated:
The use of an objective standard creates a requirement to
make reasonable inquiry regarding pertinent facts and
applicable law. In the absence of direct evidence of the party's
and counsel's state of mind, we must examine the
circumstantial evidence at hand and ask, objectively, whether
an ordinary person standing in the party's or counsel's shoes
would have prosecuted the claim.
If, "after reasonable inquiry, a person who reads, then signs, a pleading had
'reasonably clear legal justification' to proceed, sanctions are inappropriate." Procacci at
Page 5 of 21
608, n. 9.
An example of a failure to make reasonable inquiry is contained in Lee County
School Board v. Vandeventer, 2005 WL 3733830 (Fla. Div. Admin. Hrgs.), where the
School Board filed a petition to terminate a teacher and made factual allegations in the
petition that the teacher committed sexual battery on a developmentally delayed student.
However, at the time the Petition was filed, the School Board had no direct evidence that
the teacher, Respondent, had committed a sexual battery. The evidence the School Board
relied upon in filing its petition was the hearsay statements from the student's mother that
sexual battery occurred. Respondent denied any acts of sexual battery. The only
evidence of sexual battery presented at the termination hearing was the hearsay testimony
from the student's mother. Respondent testified that no sexual battery was committed.
The student did not testify because his mother refused to allow it. The Recommended
Order found that the School Board failed to provide any direct evidence of sexual battery
and failed to establish by a preponderance of the evidence that Respondent committed
sexual battery on the student. In determining whether to award sanctions under section
120.569(2)(e), Florida Statutes, the judge rejected the School Board's excuse that it faced
a quandary as well as potential negative press where there is an allegation of sexual
battery against a developmentally delayed student. The judge found:
The flaw in the School Board's argument is that, of the two parties making
claims, only one could offer direct testimony. Though the School Board's
argument attempts to bootstrap J.P. into the position of "party claiming
sexual battery," in fact the sole accuser was J.P.'s mother. Ms. Bach's
hearsay claims, standing alone, could not establish a "factual and credibility
dispute" between her testimony and Respondent's first-hand testimony. Ms.
Bach's hearsay testimony could not prove that a sexual battery occurred.
Page 6 of 21
It might be argued that, at the time the Petition was filed, the School Board
could have entertained a reasonable hope that J.P. might testify, if not in
person at the final hearing, then in some format that would result in
admissible direct testimony. However, the fact remains that at the time the
Petition was filed, the School Board had no direct evidence that Respondent
had committed a sexual battery.
The School Board might argue that it could not have been expected to
anticipate that Ms. Bach would continue to refuse all access to J. P. However,
the School Board knew at the time the Petition was filed that Ms. Bach had
refused to allow either Detective Fisher or Ms. Garlock to speak to J.P. The
School Board knew that it had no first hand statements from J.P.
The School Board knew that Detective Fisher's purported eyewitness, Mr.
Knott, had either changed his testimony or had never told Detective Fisher
that he had seen Respondent and J.P. together at the golf club. The School
Board knew that no one who worked on the PE field with Respondent
believed that he could have done the acts of which he was accused. The
School Board knew that some of the corroborative details provided by
Detective Fisher, who had seen the videotaped statement, such as the
stomach tattoo and the white car, were wrong.
Id. at 19-20.
Even though it appeared clear in the record that the School Board investigated the
allegations prior to filing the Petition, the judge concluded there was "nothing in the record
to support a conclusion that the School Board had a 'reasonably clear legal justification'
for filing the Petition. The School Board had no basis to believe that it could prove the
allegations of the Petition with competent substantial evidence. Respondent is entitled to
a reasonable attorney's fee under Subsection 120.569(2)(e), Florida Statutes (2004)." Id.
at 20.
The Vandeventer case is instructive because the court awarded sanctions even
though the facts indicated the School Board conducted a fairly extensive investigation into
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the abuse charges prior to the filing of the petition for termination. However, the results of
the investigation did not support the decision to proceed with the filing of the petition.
In the present case, it appears there was absolutely no investigation performed by
Petitioner or its attorneys prior to the filing of the petition, no consultation of experts, and
no research into the factual and legal foundation for the claims made. Petitioner admitted
it had not retained or consulted any land planners, engineers or other experts in the field
prior to filing the Petition. (T. 91-92). Thus, other than hiring their attorneys, Petitioner had
no expert review their "concerns" to determine whether those concerns could rise to the
level of a justifiable challenge to the comprehensive plan amendment, either legally or
factually. There is no evidence Petitioner's attorney consulted any experts or researched
the law to determine whether these challenges had any merit.
As described in the previously filed motions for sanctions, after the Petition was
filed, Petitioner initially listed two expert witnesses. Yet, one expert was never retained by
Petitioner and, in fact, it was learned that Petitioner never even contacted this expert.
Further, the other expert, Harry Burns, P.E., from Alachua County, Florida, was retained
only a day before his deposition and had not done any analysis nor formulated any
opinions by the time his deposition was taken one week before the final hearing. (Burns
depo. p. 10, 11, 18, 19). The City expended attorney time and costs in preparing for and
taking this fruitless deposition. One can only speculate as to why Petitioner, who made so
many predictions of dire impacts due to this change in land use, could not round up a
single expert to give any professional opinions in a timely manner. One must also
speculate why Petitioner had to reach out to Alachua County, Florida to find a traffic expert
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when the Central Florida area has a multitude of qualified professional traffic engineers.
Therefore, the evidence is strong that neither the Petitioner nor its attorney made
a reasonable inquiry into whether they had reasonably clear legal justification to proceed
with this Petition. The Petition was based on irrational fears of a couple members of the
Board and the Petition was filed without there being legal justification for the allegations.
B. Improper Purpose
It is important to emphasize that the standard set forth in both section 163.3184(12)
and 120.569(2)( e) is whether the Petition was filed for "any improper purpose." (Emphasis
added). Contrast this language with the language in section 120.595(1), which has the
different standard: participation in a proceeding "primarily to harass or to cause
unnecessary delay or for frivolous purpose or to needlessly increase the cost of litigation,
licensing, or securing the approval of an activity." (Emphasis added). While the
Recommended Order determined that Petitioner did not participate in the proceeding
primarily to harass, cause delay, etc., it is evident that Petitioner did file this Petition for an
improper purpose as defined in sections 163.3184(12) and 120.569(2)(e), Florida Statutes.
1. Frivolous Purpose
A frivolous purpose "is one which is of little significance or importance in the context
of the goal of administrative proceedings." Mercedes Lighting & Elect. Supply, Inc. v. Dept
. of General Svcs, 560 So. 2d 272,278 (Fla. 1st DCA 1990).
Petitioner had absolutely no basis in fact or in law to assert any of the allegations
in the Petition. Many of the issues, if not the majority of issues, found in the Petition, are
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beyond the jurisdiction of this venue, as they involve challenges more appropriately raised
at the development order stage.
a. Compatibility. Petitioner alleged the MDR designation was
incompatible with surrounding land uses and with the Association's property. The
testimony at the final hearing was overwhelmingly in favor of a determination that there
was no incompatibility. Petitioner had no factual basis for this allegation and had no expert
testimony opining that the MDR designation was incompatible with surrounding uses or the
Highlands' property. Respondents and Intervenor had strong expert testimony that the
MDR designation was compatible with surrounding uses. This compatibility argument was
completely illogical considering the plain fact that the proposed MDR designation was
obviously compatible with Highlands' MDR designated property and the MDR designation
of the abutting subdivision. The judge determined that the City's requirement of buffering
to the west resulted in no compatibility issue with the Industrial property and found there
was no incompatibility with Petitioner's property. See Recommended Order p. 15-16.
b. Need. Petitioner did not allege there was no need for MDR
property in Winter Springs, but instead alleged that changing the Industrial designation to
MDR would erode the City's ability to meet requirements in its plan for industrial use.
Petitioner had no expert testimony to support this allegation and no meaningful lay
testimony either. The City's expert planner testified, and the judge determined, that: 1) the
City's Plan does not call for a certain number of acres of industrial property; 2) industrial
is allowed in other future land use categories besides the industrial category; 3) the fact
that the subject property sat vacant for many years was good indication that Industrial wasn
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not the most appropriate designation for that property; and 4) there was a need for an
additional 328 acres of MDR in the City. See Recommended Order, p. 16-17. Petitioner's
allegatio~s regarding need were completely unfounded.
c. Schools. Petitioner claimed the MDR designation would have
a negative overcrowding impact on schools, especially Highlands Elementary. Petitioner
had no expert testimony to support this fear nor did it have any testimony, data or analysis
from the School District to support this irrational allegation. Petitioner failed to recognize
the fact that the City does not have a level of service standard for school facilities and is
not required to implement school concurrency. See Recommended Order, p. 18.
Petitioner's allegations regarding school concurrency were totally unfounded, legally and
factually.
d. Transportation. Petitioner alleged the LOS on streets serving
the Highlands would be negatively impacted by the MDR designation, yet had no expert
testimony to support any potential negative impact on the roads in the Highlands.
Petitioner also alleged that a state road, US 17/92, which is currently operating at LOS F,
would still operate at LOS F after the MDR designation. The only expert Highlands had
was an engineer, Harry A Burns, Jr., who testified that one of the roads in the Highlands
will be "impacted" by the MDR designation, but admitted he had no evidence that it would
be negatively impacted. (T. 61). Further, he could not say that the roads in the Highlands
would suffer any reduction in LOS either. Id. In fact, Petitioner's expert agreed with
Respondents' and Intervenor's experts that the MDR designation would result in a
substantial trip reduction as compared to Industrial. (T. 45,153,187-88,212-13). Thus,
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Petitioner had no evidence to support its allegations concerning legitimate traffic problems.
The judge determined that Petitioner failed to prove beyond fair debate that the
amendment is not in compliance with respect to transportation issues. See Recommended
Order, p. 22-23.
e. Parks. There was no legal or factual basis for the allegation that the
plan amendment would impact the City's LOS for recreational facilities. Petitioner had
absolutely no evidence or testimony to support any allegation that the LOS would be
impacted at all, yet the City had a great deal of evidence to show that the City's LOS would
be met even if park lands were not built on the subject property. (T. 180-81). Allegations
that the amendment does not provide for adequate open space and recreation facilities is
premature and meritless. Petitioner argued that the "Development Agreement. . . is not
nearly specific enough with respect to the extent of recreation and open space that is to
be reserved within the Subject Property." Amended Petition, p. 7. The judge determined
there is no requirement at this stage of the process that such a degree of specificity for
. parks be provided. See Recommended Order, p. 25. This is consistent with the opinions
of the Respondents' and Intervenor's experts who testified Petitioner's concerns were not
valid at this stage because we are simply at the land use designation stage and one would
not expect to see such a level of detail at this stage. (T. 183, 236). Petitioner failed to
exhibit a basic understanding of the phases of development and the purpose of a
comprehensive plan amendment, which is to simply change the land use designation, not
to approve zoning or a development order or permitting.
f. Consistency with Rule and Statutory Provisions. Despite
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extensive allegations in the Petition that the amendment violated numerous rule and
statutory provisions, Petitioner had no support for these allegations and, as determined
by the judge, "Petitioner did not present any testimony addressing any of the rule or
statutory provisions. Conversely, the evidence presented by Respondents and Intervenor
demonstrates that the amendment is consistent with these provisions." Recommended
Order, p. 25. Respondents and Intervenor presented overwhelming evidence through
expert testimony that the amendment did not violate the cited rule and statutory provisions.
g. Trespass and Vandalism Concerns. Despite there being no legal,
factual, or rational basis for its argument, P.etitioner alleged it was fearful that adding
residential property to the east of the Highlands (beyond another residential subdivision
that lies between Highlands and the subject) might result in residents of the development
of the subject property ignoring its own parks, or the City's nearby beautiful parks, or the
County's nearby large community park and recreation area, and instead using the
Highlands' 30 year old parks and recreation facilities. Not only might these new residents
use Highlands' parks, but they might also vandalize Highlands' parks. Petitioner had no
credible factual evidence that this fear was legitimate and had no expert testify that
potential use of their parks was relevant to an "in compliance" determination, and did not
cite to any rule, statutory provision, or other authority where this issue was relevant. On
the other hand, the Respondents had expert testimony that these fears were irrelevant.
The judge found that these allegations are "not a compliance issue under Chapter 163,
Florida Statutes." Recommended Order, p. 26.
Petitioner's allegations, its discovery requests, and even the questions posed by
Page 13 of 21
Petitioner's counsel during depositions show a complete lack of understanding of the
development process. Petitioner focused on zoning and development when the property
is not at the zoning stage yet. Petitioner objected to the lack of detail and specificity
regarding parks on the subject property and regarding potential traffic impacts, yet it is
abundantly clear in the City's Codes and Comprehensive Plan that Petitioner is demanding
a level of specificity inappropriate at the comp plan amendment stage. Further, Petitioner
insisted on a requirement for school concurrency when the City does not have a
concurrency requirement for schools. Any land planner or attorney familiar with
comprehensive planning could have advised Petitioner of this. Petitioner's allegations
demanded the analysis and opinions of experts. More importantly, had Petitioner sought
the opinions of a planner or traffic expert before filing the Petition, all of Petitioner's
arguments would have been gutted.
Respondents and Intervenor have expended time, effort and money to educate
Petitioner and its attorney. Yet, despite this enlightenment, Petitioner continued to assert
its unfounded factual and legal arguments. Why? For frivolous purposes. It appeared
evident from the testimony and the evidence presented by the Intervenor that Petitioner's
true fear was that poor people might be living on the subject property (refer to Intervenor's
Renewed Motion for Sanctions and discussion regarding the campaign by Helga Schwarz
to combat the feared "affordable housing" on the subject property). This completely
unfounded fear is totally frivolous as it had "little significance or importance in the context
of the goal of administrative proceedings."
In Burke v. Harbor Estates Associates, Inc., 591 SO.2d 1034 (Fla. 1st DCA 1991),
Page 14 of 21
the Court upheld the hearing officer's finding that the Petitioner had filed a petition for an
improper purpose on the basis that the Petitioner presented no evidence to prove facts
necessary to sustain its petition and "offered no expert testimony in support of the
pleadings and the petition." The fact that the petitioner was a layperson was deemed
irrelevant. Petitioner has absolutely no evidence to support its unfounded allegations in
the Petition and has no legal foundation to support the allegations.
The issue of whether a party participates in a formal proceeding for an improper
purpose is a question of law. Burke v. Harbor Estates Associates, Inc., 591 So. 2d 1034
(Fla. 1 st DCA 1991). In that case, the court noted that direct evidence of intent is seldom
available so in determining intent, the judge should rely on inferences from facts and
circumstances. The facts and circumstances in this case point to the conclusion that
Petitioner had no legal or factual foundation for the allegations in the petition and one or
two members of the Board of Directors have been on a personal crusade to delay the
.
development of this property.
The testimony and evidence at the final hearing was dramatically one-sided in favor
of the Respondents and Intervenors. Where the evidence is overwhelmingly in favor of
one party, the judge should award sanctions. In a suit to rescind a doctor's license, the
Department of Professional Regulation filed suit twice against Dr. Johnston. Of the thirteen
counts brought by the Department, all but five were thrown out before the hearing, and the
appellate court threw out the remaining counts. At trial, the doctor presented three board
certified witnesses and the Department presented only one non-board certified witness.
The appellate court ruled that because the evidence was overwhelming in favor of the
Page 15 of 21
doctor, he was entitled to attorney's fees against the Department. Johnston v. Department
of Professional Regulation, 456 So. 2d 939 (Fla. 1st DCA 1984). Similarly, there is
overwhelming evidence in this case in favor of the Respondents.
In sum, Petitioner and its attorney should be sanctioned for the frivolity of the
claims in this matter. At best, the sincerity behind the stated fears raised by Petitioner may
have been real (although the fears were factually unfounded and quite reactionary), yet the
merit behind the claims was wholly lacking. Being fearful does not justify a comprehensive
plan amendment challenge and the amounts of time and money expended in this matter.
Just because lay persons might have fears about what could happen if development of
MDR proceeds, if those fears are barely supportable factually and wholly unsupportable
legally, neither Petitioner nor its attorneys should be absolved from liability for sanctions.
The City expended public funds to vigorously defend this case. Despite this case being
on a fast track, the issues in this case have existed for quite some time and Petitioner had
plenty of time to research the viability of their fears well before filing the Petition. The
record established that in January of 2006, Petitioner decided to object to this project and
sou'ght legal assistance to submit objections to a February 2006 public hearing. Petitioner
submitted its objections on February 13, 2006 and June 12, 2006. Petitioner's
representatives attended the relevant public meetings on this project and commented at
the meetings. The comprehensive plan amendment was adopted on June 12, 2006.
Petitioner filed its Petition on August 25,2006 and its Amended Petition on September 22,
2006. The final hearing was held on November 29, 2006. Thus, Petitioner had over
eleven months to investigate and research the standards for a comprehensive plan
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amendment challenge and consult with experts in the field to determine if Petitioner's fears
had any merit in such a challenge.
Even more importantly, the City thoroughly educated Petitionerabouttheirmeritless.
claims ahead of time. Besides the conversations the undersigned counsel as well as
Keewin's counsel had with Petitioner's counsel regarding the lack of merit of these claims,
the Joint Pre-Hearing Stipulation clearly sets forth the Respondent's and Intervenor's
position that the Petitioner's claims are irrelevant and meritless.
Further, the City's responses to discovery should have clearly educated Petitioner
and its counsel as to the lack of merit, or at least should have raised red flags and caused
them to consult experts. It is plain to see from the wording of the interrogatories
propounded by Petitioner that Petitioner did not have a basic understanding of what is
relevant in a comprehensive plan amendment challenge. The City's responses to
interrogatories communicated to Petitioner the lack of merit to their claims. For instance,
interrogatory 2 asked whether the City "has provided for additional property within the
boundaries of the City that will be designated or zoned 'industrial' as was the former
designation of the subject property." The City responded by advising Petitioner that the
subject property was not previously zoned industrial, and advised Petitioner that industrial
uses "are allowed within properties zoned Greenway Interchange (approximately 400 acres
undeveloped in the City) and Mixed Use. The City anticipates the future annexation of a
few county enclaves that most likely will be designated industrial given their location
adjacent to other properties thatcurrently have an industrial FLU designation." The City's
response should have caused Petitioner to recognize that their "need for Industrial
Page 17 of 21
property" claim was wholly baseless, as there is available vacant property zoned industrial
in the City.
Regarding the parks claim, Petitioner requested, in interrogatory 3, whether the
Development Agreement between the Developer and the City indicated the "exact location
of any and all parks and recreation areas. . . the size of said park or recreation areas, the
amenities to be included within said park or recreation area", etc. The City responded:
"Objection, irrelevant at this stage. Without waiving the objection, since no formal
application has been made by the Applicant to the City for concept plan, subdivision plan
or preliminary engineering review [which come at later stages of the development process],
the City cannot answer this question. Further, the City would not expect to see this level
of detail at the Comprehensive Plan Amendment Stage." Additionally, in response to
interrogatory 8 and 9, the City advised Petitioner that the subject property did not seek to
make use of park facilities located on Petitioner's property, and also made it clear to
Petitioner that the LOS for parks would not be impacted by this amendment because the
City has adequate community parks and the development would be required to provide a
neighborhood park. Thus, the City made it very clear to Petitioner that Petitioner's claim
relating to parks was premature and without merit.
Regarding traffic, Petitioner propounded interrogatories regarding impacts to levels
of service. The City advised Petitioner that a traffic study would be required at a later stage
with final engineering/subdivision plans pursuant to City Code. Thus, the City again made
it clear to Petitioner that its claims were premature and without merit.
Page 18 of 21
2. Needless Increase in the Cost of Litigation
Besides the Petition being frivolous, another of the improper purposes behind this
Petition was the needless increase in the cost of litigation. Due to Petitioner's evasiveness
and flat out untruths during discovery on the issue of whether the Petition was filed with
proper authority for the Highlands HOA board, the City incurred needless investigation and
discovery costs.
During discovery, it became questionable whether Petitioner had ever obtained
proper authorization from its board to bring this action. Despite Petitioner's counsel's
promises that there was documentation evidencing the HOA's authorization to assert this
action, there were never any documents produced evidencing the board's authorization to
sue. Further, in the deposition of Helga Schwarz, the secretary of the Board of Directors
of the HOA, Ms. Schwarz testified that she spoke on the telephone with Paige Hinton, the
president, and the president advised her to have the attorneys initiate this petition on
behalf of the HOA. Depo. of Helga Schwarz, p. 21-22. Helga Schwarz testified that no
vote was taken by the Board of Directors or the members of the HOA. Id. The City
spent considerable time and effort to investigate the Board's authorization for the filing of
this action. It reviewed pages and pages of lengthy Board documents to discern the
powers of the Board members and the President, the method and manner through which
the Board acts, and the minutes of Board meetings discussing this project. The City spent
a great deal of time preparing exhibits and questions for witnesses at the final hearing
concerning the issue of the Board's authority. The City spent a great deal of time drafting
a substantial portion of its previous motion for sanctions to discuss the issue of the
Page 19 of 21
impropriety of the Petition due to the Board's failure to authorize the filing of the Petition.
All this effort was needless because, at the final hearing, Petitioner finally admitted that the
Board had actually ratified and approved the filing of the Petition at a special meeting,
which was not disclosed during discovery or Ms. Schwarz's deposition. (T. 95, 132-34,
264). When the undersigned attorney asked Ms. Schwarz why she testified in deposition
that the Board had not taken action to approve the filing of the Petition, she testified that
because her attorney attended the meeting where this approval occurred, it was her
opinion it was protected information and that she did not have to disclose itl (T.133-34).
However, the record from the deposition of Helga Schwarz does not contain any objection
from Petitioner's attorney based on attorney-client privilege. or any objection for that
matter.
The City would not have spent the time engaging in extensive discovery, motion
drafting, and trial preparation on the issue of the Board's lack of authority to bring this
action if Petitioner would have provided truthful, straight-forward information from the
beginning. Petitioner was evasive by failing to provide any meeting minutes evidencing
Board approval of the Petition or the Board's "ratification" of the Petition. Petitioner was
not truthful in responses to discovery and in deposition testimony, which resulted in the City
spending more time and effort to address the apparent lack of Board authority. Petitioner
needlessly increased the cost of litigation.
WHEREFORE, Respondent, City of Winter Springs, hereby requests this Honorable
Court impose sanctions against Petitioner, Highlands Homeowners Association and its
attorneys.
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing City's Renewed
Motion for Sanctions has been delivered via Facsimile and mail to Russell E. Klemm,
Esquire, Clayton & McCulloh, 1065 Maitland Center Commons Blvd., Maitland, Florida
32751 and Leslie E. Bryson, Assistant General Counsel, Department of Community Affairs,
2555 Shumard Oak Boulevard, Tallahassee, Florida 32399-21 00, and A. Rebecca Furman,
Esquire, P.O. Box 2809, Orlando, Florida 32802 this 14th day of March, 2007.
~<A~~~-~~
ANTHONY A. GARGANESE, CITY ATTORNEY
Florida Bar No. 988294
DEBRA S. BABB-NUTCHER, ESQUIRE
Florida Bar No. 996580
BROWN, GARGANESE, WEISS & D'AGRESTA, P.A
Post Office Box 2873
225 East Robinson Street, Suite 660
Orlando, Florida 32802-2873
Telephone: (407) 425-9566
Facsimile: (407) 425-9596
Attorneys for City of Winter Springs
Page 21 of 21