Dubois v Hefty

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Vice Mayor of Palmetto Bay is suing Lee Hefty and Jack Osterholt now.

Text of Dubois v Hefty

  • UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

    MIAMI DIVISION

    Case No. 15-20336-CIV-MARTINEZ-GOODMAN

    JOHN E. DUBOIS,

    Plaintiff,

    v.

    MIAMI-DADE COUNTY, by and through the Regulatory and Economic Resources Department, LEE HEFTY, individually, and JACK OSTERHOLT, individually Defendants, __________________________________/

    AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL

    COMES NOW Plaintiff, John E. DuBois, sues the Defendant, Miami-Dade County

    (hereinafter the County) and alleges as follows:

    Jurisdiction and Venue

    1. Plaintiff invokes the Courts jurisdiction under 28 U.S.C. 1331, as this case

    arises under the Constitution and laws of the United States.

    2. The events giving rise to this action occurred in Miami, County of Miami-Dade,

    Florida.

    3. Plaintiff is an individual residing in and owning property located at 17575 and

    17505 Old Cutler Rd, Palmetto Bay, FL 33157 (hereinafter subject property)

    4. Defendant Miami-Dade County is a municipality in a Florida County and a

    person within the meaning of 42 U.S.C. 1983 and is a legal entity suable in its own name

    under Florida law.

    Case 1:15-cv-20336-JEM Document 10 Entered on FLSD Docket 03/30/2015 Page 1 of 28

  • 5. The Department of Environmental Resources Management (hereinafter DERM)

    is a division within the Regulatory and Economic Resources Department of Miami Dade County.

    6. On November 21, 1995 Miami-Dade County Manager Armando Vidal executed

    an Order of Delegation and Operating Agreement between the Florida Department of

    Environmental Protection and Metropolitan Dade County regarding the regulation of mangroves.

    Pursuant to this order of delegation, final decision and policymaking authority with regards to

    the implementation and execution of Florida Statute 403.9321-403.9333, the Mangrove

    Trimming and Preservation Act (hereinafter MTPA), was vested in DERM. The purpose of

    the delegation agreement was to delegate the Florida Department of Environmental Protections

    authority to regulate the trimming and alteration of mangroves to counties and municipalities.

    7. Defendant Lee Hefty (hereinafter Hefty) is an individual residing in and

    maintaining employment with Miami Dade County. Hefty has been the Director of DERM since

    his appointment as interim director by Miami-Dade County Mayor Carlos Gimenez on August 9,

    2011 and has been employed by DERM since 1990. From August 2008-August 2011 Hefty was

    Assistant Director of DERM responsible for oversight of senior level departmental staff in

    several divisions involved with implementing Miami-Dade Countys environmental protection

    ordinance and for providing policy level guidance and decision making on requirements of the

    County Code.

    8. Pursuant to Miami Dade County Code Chapter 24-7 the Director of DERM has

    the sole authority to determine whether the provisions of the Miami-Dade County Environmental

    Protection Ordinance, Chapter 24 of the Miami Dade County Code, are being followed, the sole

    discretion to initiate proceedings against anyone suspected of violating the provisions of Chapter

    Case 1:15-cv-20336-JEM Document 10 Entered on FLSD Docket 03/30/2015 Page 2 of 28

  • 24 of the Miami Dade County Code, and sole discretion to terminate an investigation or an

    action commenced under the provisions of Chapter 24 of the Miami Dade County Code.

    9. Defendant Jack Osterholt (hereinafter Osterholt) is an individual maintaining

    employment with Miami Dade County. Osterholt has been Deputy Mayor to Miami Dade

    County Mayor Carlos Gimenez since August 1, 2011 and the Director of the Department of

    Regulatory and Economic Resources (RER) since May 25, 2012.

    10. In May of 2012 DERM was consolidated with the Miami Dade County divisions

    of Construction, Permitting and Building Code, Development Services, Business Affairs,

    Planning, and Environmental Resources Management to form the Department of Regulatory and

    Economic Resources (RER). This consolidation was approved by the Miami Dade County

    Board of Commissioners.

    11. Osterholt was delegated responsibility for environmental permitting and

    regulation in his employment as Deputy Mayor by Miami Dade County Mayor Carlos Gimenez.

    Osterholt was delegated responsibility and accountability for all of the service elements involved

    in permitting and land development in his appointment as the Director of the Department of

    Regulatory and Economic Resources by Miami Dade County Mayor Carlos Gimenez.

    12. Venue is proper in this Court under 28 U.S.C. 1391(b) because the Defendants

    reside and may be found within the Southern District of Florida.

    Facts

    The Walbergs

    13. From 1955-2000 the subject property was owned by Nathan and Bernice Walberg

    (hereinafter Walbergs).

    Case 1:15-cv-20336-JEM Document 10 Entered on FLSD Docket 03/30/2015 Page 3 of 28

  • 14. In 1994 the Walbergs filed for a Class I permit with DERM in order to re-

    establish the historically maintained height and configuration of mangroves present on the

    subject property following the devastation which had occurred from Hurricane Andrew.

    15. In 1996 Florida Statutes 403.9321-403.9333, MTPA was enacted and

    implemented.

    16. In light of newly enacted legislation governing the trimming of mangroves, the

    MTPA, the Walbergs withdrew their Class I permit application and trimmed mangroves on their

    property pursuant to the exemption criteria provided by the MTPA.

    17. None of the trimming conducted by the Walbergs was performed by a

    Professional Mangrove Trimmer (hereinafter PMT) and no 10-day notice was given prior to

    trimming, despite both being required by the MTPA.

    18. On April 3, 1996, after learning of the trimming performed by the Walbergs,

    DERM conducted an on-site inspection of the subject property and documented that red, white

    and black mangroves had been trimmed in violation of the MTPA by trimming mangroves below

    6 in height, altering mangroves, trimming mangroves greater than 10 in height without the

    supervision of a PMT, failure to provide 10-day notice of the trimming to DERM and trimming

    in excess of the 65% aggregate limit of coastal mangroves present on the subject property.

    19. DERM staff estimated that although mangrove trimming and alteration violations

    had occurred, less than 5% of the total mangroves on the property were trimmed in violation of

    the MTPA. No enforcement action was taken.

    20. DERM issued the Walbergs a warning letter regarding the violation and

    instructing the Walbergs not to trim in violation of the MTPA in the future. No additional

    enforcement was taken against the Walbergs.

    Case 1:15-cv-20336-JEM Document 10 Entered on FLSD Docket 03/30/2015 Page 4 of 28

  • Clifford Kunde

    21. The property located at 17401 Old Cutler Rd, neighboring the subject property to

    the north, has been owned by Clifford Kunde or his family since 1960 (hereinafter Kunde).

    22. A large riparian mangrove fringe exists along the coastline of the property located

    at 17601 Old Cutler Rd. This mangrove fringe has been trimmed and maintained according to

    the exemption provisions of the MTPA since its enactment in 1996.

    23. The Kundes have trimmed and maintained the coastal riparian mangrove fringe

    on his property at a height of 4 pursuant to the historical maintenance exemption criteria of the

    MTPA.

    24. On December 22, 2010, DERM employees John Ricisak (hereinafter Ricisak)

    and Luis Fernandez (hereinafter Fernandez) inspected and photographed the property

    immediately north of the subject property located at 17401 Old Cutler Rd.

    25. Ricisak and Fernandez observed mangroves on the property located at 17401 Old

    Cutler Rd which had been altered and cut below 4 in height in violation of the MTPA.

    26. No enforcement action was ever commenced against the owner of the property

    located at 17401 Old Cutler Rd.

    Plaintiff

    27. On July 31, 2000 Plaintiff purchased the subject property from the Walbergs.

    28. In late 2001 Plaintiff hired a licensed PMT, James Robinson (hereinafter

    Robinson), a former employee of DERM and well respected professional environmental

    consultant, to trim coastal mangroves on the subject property.

    29. Robinson applied for a Class I permit from DERM on Plaintiffs behalf to trim

    coastal mangroves on the subject property.

    Case 1:15-cv-20336-JEM Document 10 Entered on FLSD Docket 03/30/2015 Page 5 of 28

  • 30. In response to Robinsons permit application, DERMs Coastal Resource Section

    Manager, Joanne Clingerman (hereinafter Clingerman) performed an inspection of the subject

    property, measuring and inventorying all mangroves.

    31. It quickly became apparent that DERM had no intention of issuing a Permit to

    Plaintiff. DERM continually made redundant requests for clarification and additional

    information. Robinson lamented in correspondence with DERM that such permitting practices

    were ridiculous and presented a serious hinderance to his ability to make a living. Specifically,

    Robinson cited numerous projects more impactful than those proposed on the subject property

    that had been easily permitted by DERM.

    32. In response to Robinsons correspondence, Hefty1 informed Robinson that mu