Boca Raton: Recusal order affirmed

‘Clear bias’ against beach home puts key figures off case

A year after verbally ordering Boca Raton to reconsider its 2019 denial of a permit to build a four-story home on the beach, a federal judge has put his decision in writing.

“It is hereby declared” that plaintiff Natural Lands LLC “has the right to build a single-family, detached dwelling” at 2500 N. Ocean Blvd., “subject to satisfying the city’s CCCL variance criteria,” U.S. District Judge Rodney Smith said in a written final judgment he handed down on March 22.

In addition, Smith said that Mayor Scott Singer’s “bias was clear” and he would have to recuse himself from any future decisions on whether to give Natural Lands a variance to the city’s Coastal Construction Control Line, which limits building east of State Road A1A.

Also ordered to recuse themselves were Council members Andrea O’Rourke and Monica Mayotte, who were similarly found to be unfairly biased. But both have been term-limited out of office, O’Rourke in March 2023 and Mayotte on April 1.

Smith also ordered a host of city officials to steer clear of any future CCCL application by Natural Lands, including City Manager George Brown, Department of Development Services Director Brandon Schaad and environmental engineering consultant Michael Jenkins.

“The city shall ensure that its review, analysis, and/or processing of plaintiff’s CCCL application shall be sanitized such that anyone who previously reviewed, analyzed, or evaluated plaintiff’s prior application shall recuse themselves from any future proceedings, as the court finds that they too were tainted, directly or indirectly,” Smith ruled in an associated document on March 7.

Boca Raton reopened its appeal of the case the same day. It had appealed Smith’s ruling shortly after he voiced his decision on the last day of the March 20-24, 2023, non-jury trial. But the 11th U.S. Circuit Court of Appeals said the city had to wait until Smith filed his written judgment.

Smith also gave the Natural Lands attorneys until May to file their legal bill, which he said the city would have to pay.

The Natural Lands legal team celebrated the judgment.

“We are thrilled that the court has entered a written order that fully codifies its oral decision without waiver,” attorney Keith Poliakoff said. “The property owner will continue in its quest to build a home on this property, with the weight of the court order advising the city that it must approve a home at this location.”

Poliakoff said the final judgment, if upheld on appeal, would require the city to pay his team more than $1 million in legal fees and costs.

This was the second adverse court ruling in two months against the city and in favor of beachfront construction. A Palm Beach County circuit judge said on Feb. 1 that Boca Raton “unlawfully withheld and illegally delayed” turning over 42 public records that were prejudicial to the owner of 2600 N. Ocean Blvd., just north of the Natural Lands parcel. That landowner also has been trying to get a building permit for an oceanfront residence.

Robert Sweetapple, one of the lawyers for the 2600 landowner, Delray Beach-based Azure Development LLC, has said his side’s legal bill, also to be paid by the city, will top $1 million as well.

Neither figure includes what Boca Raton has paid its outside lawyers from the law firm Weiss Serota to litigate the cases.

Poliakoff said Natural Lands is working on an alternative design for 2500 N. Ocean to ensure compliance with new floodplain requirements.

“The property owner has always wanted this parcel developed as its winter retreat, so no current plan to sell has been contemplated,” he said.

The case stretches back to 2011 when the landowner first applied for a building permit.

In December 2015 the City Council caused a public outcry when it approved a zoning variance to allow something to be built at 2500 N. Ocean, an 88.5-foot-wide lot. City rules normally require lots at least 100 feet wide.

Natural Lands planned to build a 48-foot-tall, 8,666-square-foot single-family home at the site and obtained a Notice to Proceed from the state Department of Environmental Protection in October 2016.

But the council denied a city CCCL variance on July 23, 2019.

Before the trial, the city offered to pay Natural Lands the $950,000 it paid to buy the parcel if it would drop the case. The partnership declined.

Article Link: Boca Raton: Recusal order affirmed
Author: Mary Kate Leming

‘This is our history’: Fight to preserve historic Black cemetery heats up in Pompano Beach

Westview Community Cemetery is home to the final resting places of some of Broward County’s most influential and pioneering African American families.

A fight to preserve an important piece of Black history is heating up in Pompano Beach. NBC6’s Lorena Inclan reports


A fight to preserve an important piece of Black history is heating up in Pompano Beach.

At the center of it all is Westview Community Cemetery, a historic Black cemetery.

The burial grounds are the final resting place of some of Broward County’s most influential and pioneering African American families.

The battle over the land could soon be settled in a courtroom.

Elijah Wooten, 91, spends every morning walking the grounds at Westview Community Cemetery just off Copans Road.

He not only keeps his family plot nice and tidy, but he also makes it a point to pick up trash and is even going out of pocket to maintain the historic Black cemetery.

“It means more than that to me, the older I get the closer I’m going to be out here so everything that I have that I can give I’m going to give it,” Wooten said.

Wooten was the chairman of the board of trustees for the cemetery from the ’60s to the ’80s now his role is purely a labor of love and commitment.

“I come out here every day and I pray. Most of my friends are out here,” Wooten said.

He wouldn’t have to front his own money if Westview Community Cemetery had been properly maintained — a responsibility, he said, that should fall on the board of trustees that currently runs the cemetery.

An aerial view of Westview shows the widespread disrepair and the signs of years of neglect are evident. In one section, a few rows of concrete vaults are painted in white, but that’s where improvements end.

Many headstones and cement vaults are cracked, and in some cases, falling apart, but the worst example of disrepair is a grave that is essentially exposed and is covered with a tarp to prevent further damage.

Sonya Finney was recently elected by community members to serve on a new cemetery board of trustees, but the problem is that the previous board still has control over the burial grounds.

“They were operating as the board of the cemetery, they were actually operating illegally not under the guidelines of the bylaws which state that there should be nine board members, those four individuals had been operating for years just amongst themselves,” Finney said.

It was that old board that authorized the sale of 4.5 acres of cemetery land to a developer who aims to build an industrial park.

The new board believes there are bodies buried where the developer wants to build.

According to the developer’s attorney, Keith Poliakoff, “ground penetrating radar has confirmed that the property does not contain a single human remain.”

However, Finney believes the proper equipment was not utilized.

“The company that they used to do the sonar was just a company that does utility sonars,” Finney said.

In 2021, Kevin Eason was one of the people who filed a lawsuit against the old board in the hopes of voiding the land purchase, but an appeals court dismissed the lawsuit in 2022.

Eason serves alongside Finney on the newly elected board and has family buried at Westview.

He wore a t-shirt to city meetings that reads, “Stop stealing inherited land.”

“This land was given to us for the Northwest community to bury at an affordable rate because we were not able to bury on the east side,” Eason said.

In a separate lawsuit, the new board is now suing the old board, alleging they’re violating the bylaws.

“Our goal, and I believe I speak on behalf of the new board, is to get control over the cemetery, bring it back up to speed in terms of landscaping, the beautification and things of that nature, and then look to come up with a vision and include the community in that decision,” Finney said.

The case is pending in court.

In a statement to NBC6, Poliakoff said, “This self-appointed Board is attempting to overthrow the legitimate Cemetery Board. The Court of Appeals has conclusively determined that the 2022 sale was legal and proper. Ground penetrating radar has confirmed that the property does not contain a single human remain. The continued attempts by this group to devalue the property with false claims in hopes that they can buy the property at a discount will continue to be met with staunch opposition. The unfortunate aspect of this entire situation is that the cemetery had plans to utilize the sale proceeds for essential improvements. Instead, the cemetery is now forced to squander its limited resources to defend these futile legal battles.”

The new board denies the claims made by Poliakoff.

There’s a real fear among community members that Westview could be erased if something isn’t done. If that happens, it would mean the final resting place of pioneers like actress, Esther Rolle, could be gone.

“This is our history,” Wooten said.

NBC6 did reach out to one of the board members who currently controls the cemetery and authorized the sale of a portion of the land, but we have not heard back.

Article Link: ‘This is our history’: Fight to preserve historic Black cemetery heats up in Pompano Beach
Author: Lorena Inclán

New state law could allow developers to demolish historic buildings

Ocean Drive on Miami’s South Beach. The 1920s and 1930s era buildings within this corridor are immune to a new state law that strips local historic protections for buildings in coastal areas.

A newly enacted state law will make it easier for developers to demolish some historic structures in coastal areas, a Fort Lauderdale land use attorney told the Business Journal.

Keith Poliakoff, co-founder of Government Law Group, said the bill will enable developers to demolish old buildings that weren’t registered with the National Register of Historic Places prior to Jan. 1, 2000.

“As a result of this bill, you will start seeing a tremendous amount of real estate deals where these old properties are finally trading hands at the value that they are worth,” Poliakoff said.

SB 1526, also known as the Resiliency and Safe Structures Act, was signed into law by Governor Ron DeSantis on March 22. The bill primarily deals with properties in special flood hazard areas where there is at least a 26% chance of flooding over the course of a 30-year mortgage. In those places, local governments can’t prevent the demolition of any structure that doesn’t comply with the new requirements of the National Flood Insurance Program, according to an analysis by staff of the Florida Senate’s rules committee.

In short, most cities are severely limited in their ability to protect older buildings along the coast, although an exception was created for barrier island municipalities, such as the town of Palm Beach, with populations of less than 10,000.

Other exceptions include buildings listed in the National Register of Historic Places for at least 24 years, such as the Art Deco Historic District in Miami Beach, or privately owned single-family homes that were designated historic since Jan. 1, 2022.

The bill also bans local governments from mandating a replica of the demolished building, requiring a developer to preserve any part of the demolished structure, or imposing new building requirements. The demo permit must also be approved administratively and without public hearing, the rules committee report stated.

“Within the next 30 days you will start seeing demolition permit requests to ensure that structures can be removed quickly,” said Poliakoff, adding that he has clients in Hollywood and Miami Beach who want to demolish decades-old buildings on their properties that are too expensive to rehab.

Although most of the Art Deco District along Collins Avenue and Ocean Drive in Miami Beach are immune from the law, the same can’t be said for other parts of the city, said Daniel Ciraldo, executive director of the Miami Design Preservation League.

“It could be devastating in Mid Beach, for example the area where the Faena Hotel is located, and the Collins Waterfront Historic District,” Ciraldo said.

Consisting of properties built in the 1940s, 1950s, and 1960s, the Collins Waterfront Historic District in Mid-Beach is on the National Register of Historic Places, but it wasn’t listed January 2011.

Ciraldo said the law is “arbitrary and targets certain places over others.”

“We don’t think legally it will withstand a challenge in the courts,” he said.

Article Link: New state law could allow developers to demolish historic buildings
Author: Erik Bojnansky

Top Real Estate Issues Tackled By Fla. Lawmakers In 2024

Real estate matters remained a high priority for the Florida Legislature during its 2024 session, which wrapped up Friday with lawmakers making revisions to a landmark housing bill, imposing statewide vacation rental regulations, and taking further steps to shore up condominiums and community associations.

Here’s a look at some of the most notable changes lawmakers sent to Gov. Ron DeSantis’ desk — and one they didn’t.

Live Local Revisions

Arguably the signature piece of the 2023 session, the Live Local Act caught the attention of real estate developers with tax breaks, building-size bonuses, and the opening of commercial and industrial zoned sites for residential projects in exchange for including affordable and workforce units. But some local governments balked at preemptions of their approval powers, even enacting development moratoriums in response.

When the 2024 session opened in January, Senate Bill 328 looked like it might temper some of those concerns, but the final version that passed appears to do more to clear obstacles to Live Local projects by adding another preemption for floor area ratio, or FAR, which determines buildable square footage, and by reducing parking minimum requirements, while curbing allowed heights only in single-family neighborhoods.

Bill Sklar, a shareholder at Carlton Fields, said Senate leadership made clear to him they did not view S.B. 328 as a “glitch bill” aimed at fixing problems, but instead the first of what is likely to be a series of refinements to the Live Local Act over several years.

Keith Poliakoff, a partner at Government Law Group, also predicted further changes — and tensions.

“While this law attempts to clarify many aspects of the Live Local Act, municipalities are already crafting ways to thwart its effectiveness,” he said. “As a result, there is no doubt that this act will once again be amended next year.”

Vacation Rentals

After more than a decade of unsuccessful attempts, the Legislature passed a bill setting a statewide framework for vacation rentals, which number in the tens of thousands in the state and have become the scourge of some neighborhoods. Indicative of the measure’s controversial nature, S.B. 280 passed by narrow margins, 60-51 in the House and 23-16 in the Senate.

The law empowers the state to license vacation rentals and regulate “advertising platform[s]” such as Airbnb and VRBO, but it does allow local governments to require registration of vacation rentals, set reasonable registration fees and inspect rentals for code compliance. Local governments can also issue fines of up to $500 and suspend rental registrations for violations, but only after multiple violations within set amounts of time and after giving the owner 15 days to resolve the violation.

The new law maintains a “grandfathering” of local restrictions that predate 2011, when the Legislature preempted local regulations prohibiting or restricting the use of vacation rentals. The new law extended the “grandfather” clause to 2016, which amounted to a carveout for policies in Broward and Flagler counties, according to a legislative staff analysis, but the Senate did not pass a last-minute amendment to “grandfather” local regulations passed by June 1, 2024.

The law also sets requirements for advertising platforms to collect and remit taxes and sets occupancy limits for rentals.

Coastal Building Demolitions

The Resiliency and Safe Structures Act, which limits local control over the demolition and replacement of certain coastal buildings, represented another controversial initiative that crossed the finish line after previously falling short.

Opponents said S.B. 1526, which applies to buildings that are deemed unsafe and don’t conform to current National Flood Insurance Program elevation requirements, caters to developer interests and threatens the character of several historic coastal communities, including Miami Beach. But while such criticism killed a similar proposal last year, this time a similar set of carveouts added during the session built momentum and led to passage by 36-2 in the Senate and 86-29 in the House.

Government Law Group’s Poliakoff said that in the wake of more stringent flood plain management requirements, the inability to rehabilitate older structures up to those standards has left numerous coastal buildings vacant and turned them into a blight on the surrounding community.

“Some local governments are so concerned with maintaining community character that they have created major obstacles in getting these obsolete buildings reconstructed,” he said. “This law eliminates the politics by requiring local governments to approve demolition plans for these impacted buildings” and new projects up to maximum allowed heights.

Condos and Community Associations

The Legislature has been scrutinizing condominiums and community associations since the 2021 partial collapse of the Champlain Towers South condo in Surfside, which killed 98 people, and the 2022 arrests of current and former board members at the Hammocks Community Association near Miami over an alleged $2.4 million dollar fraud scheme.

Lawmakers’ latest work on these issues and others related to condominiums and community associations ended up largely combined this year in S.B. 1021, which passed unanimously in both chambers.

Among its many parts, the 154-page bill requires condo associations with 25 or more units to make certain records available on a website or mobile app, mandates the maintenance of additional accounting records, and establishes criminal penalties for willful failure to comply and destruction of records.

It also adds conflict of interest disclosure requirements related to the hiring of community association managers and bids for other services, and it provides additional criminal penalties for board members accepting kickbacks or interfering with elections.

“I guess after investigating what happened with the Hammocks, they realized that there’s a lot of shortcomings in protections for the homeowners,” said Kevin Koushel, a partner at Bilzin Sumberg Baena Price & Axelrod LLP, but he added these new requirements and penalties could have a chilling effect on finding residents willing to volunteer for association boards.

Following up on building safety reforms made in 2022’s S.B. 4D and last year’s S.B. 154, the Legislature added a requirement for board member education on the milestone structural inspections and reserve requirements established in those previous bills. S.B. 1021 also exempts four-family dwellings of three or fewer stories above ground from having to undergo the new milestone inspections.

But lawmakers notably did not extend the inspection deadlines at the end of 2024 for condos to complete their milestone inspections or take any steps to provide financing programs or assistance for condos.

“I think there was some hope, at least from a lot of the condo associations, that the deadlines would be extended or some additional ability to sign contracts and have the work deferred,” Koushel said.

“I wish they did, but they didn’t,” Carlton Fields’ Sklar said of the potential for financing help, but he said House Speaker Paul Renner, R-Palm Coast, felt strongly they “were not going to kick the can down the road” on the inspection and reserve requirements.

Lawmakers also rolled in proposals from two other bills to update definitions in the Condo Act to acknowledge the creation of condominiums within multi-use or multi-parcel projects, which is relevant to the growing trend of branded residences in condo-hotel and other mixed-use projects.

Additional provisions require clear declarations of how costs and control of those projects will be apportioned with these partial condos, and they mandate disclosures of these agreements for new and resale transactions of units.

“Those are, in my estimation, significant consumer protections that did not previously exist,” Sklar said.

Foreign Ownership Limits

One of the Legislature’s actions that drew the most attention in 2023 was the passage of S.B. 264, which severely limited land and real estate investment by people and interests tied to the People’s Republic of China and six other “foreign countries of concern.”

The Republican-controlled Legislature delivered on a top priority of DeSantis ahead of his ill-fated presidential run despite considerable controversy and questions about the law’s clarity. Some investors, especially private equity funds, have expressed concerns that noncontrolling members of a fund would be restricted individuals under the law.

Lawmakers looked into providing more clarity on certain parts of the law and potentially loosening some of the restrictions on Chinese individuals in S.B. 814, but DeSantis made clear during a press event that he opposed any backtracking, and ultimately no changes were made — leaving some attorneys and their fund clients looking for more.

“A lot of us are hoping that the administrative side, the bureaucratic side that’s making the rules and interpreting the rules can clarify that and maybe put out guidance that stresses that squarely enough that people will feel comfortable,” said Joe Hernandez, a partner at Bilzin Sumberg, who noted the firm has received calls since the law’s enactment from concerned fund clients.

–Editing by Haylee Pearl and Philip Shea.

Article Link: Top Real Estate Issues Tackled By Fla. Lawmakers In 2024
Author: Nathan Hale

Real Estate Transactions: Keith Poliakoff, Government Law Group

Check out the professionals who are finalists in the Real Estate Transactions category as part of the Florida Legal Awards.

Keith Poliakoff, with Government Law Group, is a finalist for the Daily Business Review’s 2024 Real Estate Transactions award.

What are some of your most significant achievements of the past year?

Some of my most significant achievements have involved golf course redevelopments in 2023. For example, I helped to lead the redevelopment of the Emerald Hills Golf Course into a Jack Nickluas-designed course that features approximately 500 units of housing. I also won an award from the City of Hollywood for the redevelopment of the Orangebrook Golf course, to transform the Rees Jones designed course by bringing 800 units of housing and golf amenities.

I also won approval for BTI Partners 900 unit tower in Hollywood and the complete redevelopment of the Southland Mall in Cutler Bay. Altogether I oversaw more than $3 billion in new development deals in 2023.

Florida’s real estate market is continually among the hottest in the country. What are your thoughts on that?

The influx of capital from the Northeast and the growing demand for housing continues to fuel a construction boom in South Florida’s urban cores. Investors and developers have discovered areas like downtown Hollywood where there is room for smart redevelopment to bring housing opportunities to an area so close to some of Broward’s largest employment centers like the port and the airport. The opportunities in South Florida abound. A good example is the City of Hollywood, which is taking a proactive approach to attracting investment and businesses to a community that has so much to offer.

What does it take to become a trusted real estate/transactional lawyer in Florida?

Honesty is essential to becoming a successful land-use attorney. Relationships are essential to success. You need to be honest with municipal leaders about the pros and cons of projects you represent. You also have to have quality clients who will see projects through, otherwise your reputation with civic leaders may be tarnished.

Article Link: Real Estate Transactions: Keith Poliakoff, Government Law Group
Author: Daily Business Review

Debt-Stricken Homeowners Fight Back After High Court Ruling

Alan DiPietro watches one of his two rams on his Massachusetts alpaca farm in the spring of 2023. After seeing portions of his land foreclosed on due to delinquent taxes and other obligations, DiPietro is suing to recoup what he says is more than $300,000 in excess value the government holds. (Courtesy of Alan DiPietro)

Alan DiPietro merely wanted more land for his alpacas.

It was 2014, and the Massachusetts engineer had been raising a herd of the camelid mammals for half a dozen years and selling their fleece. Looking for more space for his alpacas to roam, he bought 34 acres in the contiguous towns of Bolton and Stow in eastern Massachusetts.

His idea was simple: With only minimal changes, he could turn that undeveloped land into an alpaca farm.

After falling behind on tax payments and facing a fine for an alleged wetlands law violation, however, the local government foreclosed on some of that land to make good on DiPietro’s debt.

That was December 2021.

“It was clear that they were going to take everything, but I had gotten myself to the land court hearings about the tax title foreclosure, and they said, ‘There’s nothing you can do about it. You need to get an attorney.’ And I said, ‘Well, I don’t think the attorney’s going to tell me anything different,'” DiPietro told Law360 in a recent interview.

Since then, the U.S. Supreme Court handed down a landmark decision finding a Minnesota county could not keep the excess equity it reaped after foreclosing on a woman’s condominium in order to resolve a tax lien.

While Massachusetts law similarly allows the state to keep excess equity in cases where the property is worth more than the debt owed, DiPietro is now going to court to get back what he alleges is more than $300,000 in excess value the local government holds.

State laws vary considerably on the practice, which some have dubbed “home equity theft,” with many outlawing the practice but some allowing it. The practice is common in the states that allow it, and a recent study by the Pacific Legal Foundation, which represents DiPietro in the lawsuit he filed against the town of Bolton last January, found governments have taken more than $777 million in equity from homeowners.

In the wake of the U.S. Supreme Court’s ruling last year in Tyler v. Hennepin County, however, states that permit the practice have seen a wave of new litigation from homeowners looking to challenge it and efforts by lawmakers to reform it.

The Pacific Legal Foundation told Law360 it has discussed reforms with legislators in Alabama and Idaho, and bills are planned or expected in Alaska, California, Illinois, Minnesota, Montana, Nevada, New York, Oregon and Rhode Island.

“We do believe that there are ripple effects and ramifications from the decision. We think they could go in various directions,” said Buck Dougherty, senior counsel at Liberty Justice Center. “Most of the work going on right now is happening in the legislatures in various states. … Everyone’s trying to figure out how they’re going to navigate Tyler and what that’s going to look like.”

Meanwhile, lawsuits challenging the practice have been filed in more than half a dozen states.

“It’s amazing to me that, even after the Tyler decision, that anyone can question whether they’re operating unconstitutionally,” DiPietro said. “It seems crazy that it can be different in the different states.”

Home Equity ‘Theft’ Reform Was Long in the Making

Tax-delinquent homeowners face vastly different experiences in states that ban home equity “theft” versus states that allow it.

For homeowners in the majority of states that have outlawed the practice, the process is quite simple: When government takes property through tax foreclosure and then sells it, the difference between sale price and debt owed must by law be returned to the homeowner.

But in Massachusetts, Minnesota and other states, homeowners have routinely been told, as DiPietro was, that there’s nothing to be done. The local government is simply following state law, which allows for the practice.

In short, whether falling behind on taxes wipes out a homeowner’s life savings in equity and upends their lives has been largely dependent on where they choose to live. And in states where governments are allowed to hang onto excess equity, it’s been the very low-income owners who have been largely impacted.

“Seventy-five percent identify as Black or African American, and 75% identify as having household incomes of less than $30,000,” Dougherty said.

The more than a dozen states that allow for the practice have raked in millions of dollars in the last decade alone, according to a report from American Property Owners Alliance, which found governments took $780 million in equity from homeowners from 2014 to 2021 through tax foreclosures on 8,600 homes.

The Supreme Court case that’s now called the practice into question comes out of Minnesota, where Geraldine Tyler fell behind by $15,000 in taxes and other penalties on her Twin Cities condominium.

When the government took the property and later sold it for $40,000, it pocketed the $25,000 equity difference. When Tyler sued, both a federal district judge and the Eighth Circuit on appeal found Hennepin County had acted within its rights under Minnesota law. The U.S. Supreme Court took the case in 2022 and decided in favor of Tyler in May 2023.

The high court found Hennepin County keeping that $25,000 difference was a violation of the Fifth Amendment’s takings clause, which bars governments from taking private property without just compensation.

The U.S. Supreme Court did not weigh in on the plaintiff’s allegation of an Eighth Amendment violation — that Hennepin County’s actions rose to the level of an excessive fine.

Bay State Has Seen a Flurry of Post-Tyler Activity

Long before the Supreme Court took up Tyler, DiPietro had been scrambling.

He had gone through a divorce and was facing a $26,000 fine for allegedly violating the Massachusetts Wetlands Protection Act as well as Stow and Bolton’s bylaws when he installed fencing and made other land improvements too close to an area of wetlands. He had also fallen behind on a roughly $6,000 tax payment, which later started accruing interest at a clip of 16% per year.

All told, by 2021, when the town of Bolton foreclosed on the land DiPietro owned there, his debts to the town had grown to roughly $60,000. The land in Bolton is worth $370,000 for tax purposes, leaving an equity difference of roughly $310,000 that the local government is holding.

When DiPietro learned the local government was taking his property and would not be paying him the difference between market value and debt owed, he naturally sought a legal opinion.

At the time, home equity “theft” was not grabbing national headlines, and a lawyer told DiPietro there was simply nothing to be done — that Massachusetts allowed the practice and the local government was following the law.

“I got an attorney, and he said, ‘There’s nothing you can do about it. Either pay or they take it. That’s just the way it is,'” DiPietro said. “He never raised any Fifth Amendment issue. He never raised anything about the constitutionality of the statute. Nothing. So nobody was helping. Nobody was thinking that way.”

Shortly after the December 2021 foreclosure, DiPietro got in contact with the Pacific Legal Foundation, which agreed to represent him pro bono. DiPietro filed his lawsuit against Bolton in January 2023.

“It’s a blessing to me because I could not afford that,” DiPietro said. “I couldn’t afford … a top-rate attorney, much less one of national caliber.”

DiPietro’s suit is just one of several cases proceeding in Massachusetts, which has also seen recent bills in its House and Senate aimed at addressing the question of home equity theft.

On the litigation front, the City of Springfield and the Town of Tyngsborough are both involved in legal battles with homeowners who claim they’re being robbed of equity in their property.

The former case concerns Springfield homeowner Ashley Mills, who fell behind by more than $20,000 on taxes on her home yet had more than $200,000 in equity in the property. In the latter case, Tyngsborough is in a court battle over whether it can foreclose on the home of Paula Recco and keep the equity difference.

Meanwhile, the state’s attorney general issued guidance late last year clarifying that, under its reading of the Hennepin decision, an unconstitutional taking has occurred if equity is greater than debt when a private investor takes title. And Massachusetts saw at least six pieces of legislation introduced last year aimed at ending home equity “theft” in the state.

Those bills, which are still making their way through the Legislature, lay out various requirements and procedures for governments to sell tax-foreclosed properties and send the excess equity, after debts are settled, back to the former property owner.

“The bigger problem I see right now is that the Massachusetts Legislature knows this is unconstitutional. The attorney general knows it’s unconstitutional. The land court knows it’s unconstitutional. And yet nothing can be done until the Legislature acts,” DiPietro said. “The Legislature has had this in front of them for two or three sessions now, and they’ve been unable to write new legislation to resolve this.”

“They’re in a lot of trouble here, and they don’t want to pull the carpet out from under everything too quickly,” he added.

Other State Legislatures Are Moving Past Tyler

While movement in the Massachusetts Legislature has been slow, other states are moving more quickly.

A bill in Arizona that passed a vote in the state’s House of Representatives earlier this year and has now moved to the state’s Senate would create new requirements for distribution of proceeds in connection with sales of properties that governments have taken via tax foreclosure.

In Colorado, the state’s attorney general issued a formal opinion last year finding an unlawful taking will be considered to have occurred if equity is greater than debt when a private investor takes title. Meanwhile, a bill that passed a House vote earlier this year and is moving through the Senate would bring the state in line with the Tyler decision by requiring any excess equity to be returned to the former owner following a sale.

Meanwhile, a bill introduced in the Minnesota Senate last year just weeks before the high court’s decision in Tyler would end the practice of equity “theft” and bring the state in compliance with the ruling.

In Idaho, Gov. Bradley Little in February signed a bill that requires governments to sell a property within a year of acquiring it via tax foreclosure and requires return of surplus equity to the former owner.

Some states have already taken action. In Maine and Nebraska, bills passed last year ended the practice of home equity theft. In Montana, the passage of S.B. 253 in 2019 prohibited home equity “theft” in connection with residential, forest and agricultural properties. North Dakota ended it in 2021 with the passage of H.B. 1199.

“I hope there will be good legislation that comes from the [Tyler] case. I do think that the property tax laws and how local governments conduct [them], they do need to be reformed,” Dougherty said. “Some states are better than others. I do believe there will be significant reforms in more than one state.”

Meanwhile, in New York, lawmakers last year passed a bill that would have put a one-year moratorium on tax foreclosures in place while the state studied the issue of home equity theft, but Gov. Kathy Hochul vetoed the measure in December.

Wisconsin, meanwhile, eliminated home equity “theft” in 2022 with S.B. 829, but now a new bill is pending, supported by more than a dozen sponsors, that would provide rules and procedures for how tax sales are conducted and how equity is returned.

“Some states are in compliance with the mechanics, some states are probably in the middle, and some states are not so great,” Dougherty said. “The short answer is, I expect to see a lot from various state legislatures this year. States are going to figure it out legislatively.”

Litigation Continues in a Handful of States

When it comes to legal challenges over the practice, Michigan has been center stage of late, with a handful of cases having already been decided and others moving through the courts.

The Michigan Supreme Court ruled in 2020 that Oakland Could not keep the excess equity when it sold a rental property owned by Uri Rafaeli to make good on delinquent taxes. And in Hall v. Meisner, the Sixth Circuit found in 2022 that Michigan’s tax foreclosure process violated the Fifth Amendment’s takings clause.

“Although I believe that the problem may be limited to certain states and certain jurisdictions, those governmental agencies should immediately audit their past foreclosures to proactively make those impacted whole,” said Keith Poliakoff of Florida-based law firm Government Law Group. “If they fail to do so, I foresee numerous class action cases being filed based on the court’s unambiguous decision.”

The Great Lake State, however, continues to see litigation as plaintiffs hope to ride the momentum of the Tyler and Hall decisions.

In Schafer v. Kent County, the Michigan Supreme Court is set to decide the constitutionality of tax sales by Kent County in 2017 at prices higher than the debt owed by the plaintiffs.

second case before the state’s high court, Hathon v. State, concerns the tax-foreclosed former property of Lynette Hathon, which allegedly had a market value of roughly $67,000 versus roughly $5,000 in debt owed. The state foreclosed on that property in 2018 and sold it at auction for roughly $28,000.

“I expect the Michigan Supreme Court to adopt the holding of Hall. Any cases concerning post-foreclosure auctions that generated proceeds likely should resolve soon after the Supreme Court rules,” said Mark McAlpine of McAlpine PC, who represented the plaintiffs in the Hall case. “Cases where a municipality exercised its right of first refusal prior to a sale are proving more difficult to resolve because the amount of damages can be debated.”

Oakland County, Michigan, filed an amicus brief in the Tyler case in support of Hennepin County.

“In no event should the court federalize state foreclosure proceedings by reshaping a sovereign state’s property rights,” the county argued in its brief.

In Minnesota, meanwhile, a judge is presiding over a pair of cases involving the tax foreclosures and subsequent sale of properties owned by plaintiffs Sharon Sporleder and Darrin Demars.

“It shocks me that there can be a clear constitutional problem and yet nobody’s willing to do anything or resolve it,” DiPietro said. “It just seems like the Supreme Court spoke, and all these courts should just fall in line right now and not be waiting for somebody else to make the decision.”

“I’ve been depressed. I get angry,” DiPietro added.

In Nebraska, the state’s highest court is currently weighing two cases over the issue, including one the U.S. Supreme Court had initially agreed to hear before ultimately remanding it in the weeks after the Tyler ruling.

In the second, the nation’s high court vacated an earlier decision by Nebraska justices that had gone against the homeowners. In that case, the U.S. Supreme Court ordered the Nebraska Supreme Court to revisit its conclusions in light of Tyler.

“I do expect to see litigation post-Tyler in the last half of 2024,” Dougherty said. “There are going to be huge ramifications in terms of property rights. The Eighth Amendment has been left open. I still think there is more to do on the Fifth Amendment.”

In New Jersey, a judge ruled last year that the U.S. Supreme Court’s decision in Tyler applied to foreclosure proceedings in the state. A second case, Johnson v. City of East Orange, is also moving forward over an $81,000 profit that plaintiff Lynette Johnson alleges the city improperly held onto after seizing her home and selling it.

Those stories, not unlike DiPietro’s, speak to vast differences that still exist between states that allow for home equity “theft” and those that don’t, even after the Tyler decision.

“I’m motivated to do something about this and actually make sure that people know about this and that the thing gets checked, gets changed, because I was angry. I was angry for years at these people in the town,” DiPietro said. “And their position is, ‘We’re just following the law, so don’t be mad at us.’ … That was the thing that always rubbed me the wrong way.”

–Additional reporting by Carolyn Muyskens, Danielle Ferguson, David Holtzman, Charlie Innis and Nate Beck. Graphics by Ben Jay. Editing by Philip Shea.

Have a story idea for Access to Justice? Reach us at accesstojustice@law360.com.

Florida legislature passes bill allowing demo of aging coastal buildings

Though some structures, including those on National Register, are protected, legislation opens the door to new waterfront construction

From left: Rep. Lindsay Cross, attorney Keith Poliakoff and Rep. Spencer Roach (Getty, Florida House of Representatives, Facebook)

Florida lawmakers approved a controversial bill that would make it easier to demolish some coastal buildings, many of which are aging, and redevelop the sites.

The proposed legislation pitted property owners and developers against preservationists who decried the potential demolition of structures that embody the old-Florida character, including buildings that have municipal historic designations.

The House on Wednesday approved the five-page bill with a 86-29 vote, a week after the Senate approved it with a 36-2 vote. The legislation does not become final until Gov. Ron DeSantis signs it. Florida lawmakers had considered a similar bill last year, though it didn’t pass at the time.

The bill allows the demolition of a coastal building if it meets one of three criteria: It is considered “nonconforming,” meaning it doesn’t meet the elevation requirement for new construction in the National Flood Insurance Program; or a municipal building official determined the structure is unsafe; or a municipality already has ordered demolition of the building.

Property owners can bypass public hearings and raze buildings only with administrative approval. Municipal employees have to OK a demolition as long as it is in line with state regulations such as the Florida Building Code and Life Safety Code. After that, a county or city has to allow for the redevelopment of the site with a new building that is as tall and as big as allowed on similar coastal sites that are in the same zoning district.

Some historic structures will be protected from the wrecking ball, though the legislation could open the door to demolition of buildings that only have municipal historic designation. Protected structures include those on the National Register of Historic Places, as well as those in historic districts listed on the National Register prior to 2000. Single-family homes and some buildings in small barrier island municipalities also are protected.

During a debate on the House floor this week, Rep. Spencer Roach, the bill’s sponsor, said the carve outs in the legislation protect buildings in several cities and areas of the state from being razed. This includes Ocean Drive in Miami Beach, as well as Palm BeachKey West, St. Augustine, Tampa and Pensacola.

Yet, the bill leaves multiple historic buildings in Miami Beach’s Mid-Beach and North Beach vulnerable to the wrecking ball.

“Ocean Drive is just part of it. We have the Collins Waterfront Historic District. We have the Morris Lapidus Historic District. Talk about an iconic architect,” Miami Beach commissioner Alex Fernandez said, adding that the bill incentivizes property owners to neglect their buildings so they can have them demolished.

The legislation would allow “the destruction of valuable historic assets along the oceanfront of Miami Beach that will never be replaced,” Fernandez said. These properties play a vital role in the history, culture and fabric of our community.”

Attorney Keith Poliakoff, who represents developers in land use and zoning matters, said the bill creates a streamlined process to resolve “blight” in some coastal areas due to aging structures that developers can’t reconfigure to meet the latest flood and resilience standards.

“This bill helps because now [property owners] can demolish instead of trying to figure out how to rehab a building that is 50 or 60 years old,” said Poliakoff, of Government Law Group, with offices in Fort Lauderdale and Delray Beach. “It allows a developer to get rid of the red tape and demolish an antiquated building.”

So far, knocking down these buildings or redeveloping them to current flood standards has proven difficult, he said. Amid the heightened threat of rising seas and storm surges, federal, state, county and city governments have enacted more stringent building regulations, including that buildings have to be elevated by 10 feet. And, the lower floors can’t be living space, but are restricted to commercial and parking uses.

All this means developers lose a “considerable amount of developable area,” Poliakoff said, adding that some cities put up “major hurdles” to coastal redevelopment “because they believe that those properties add character to their communities,” he said.

As a result, some aging coastal structures are “left fallow and dormant because developers do not have the funds to redevelop those properties under the new flood plain criteria,” Poliakoff said.

The bill imposes some restrictions on municipalities regarding the development of the sites with new buildings. Counties and cities can’t mandate that the demolished structure be replicated or require the preservation of any of its elements, or impose public hearings or construction requirements that are in addition to what is required for similar sites in the same zoning districts.

Rep. Lindsay Cross, of St. Petersburg, opposed the bill, raising questions as to whether it could allow for more density in coastal areas or hinder hurricane evacuations.

“For every older two-story motel that doesn’t meet standards for new development that is situated next to a 200-unit hotel, that modest-sized building can be replaced by another 200-bed hotel, increasing traffic, making hurricane evacuation more difficult, potentially increasing insurance rates and perpetuating a cycle of risk,” Cross said on the House floor on Wednesday. “Not everything needs to be built at the maximum height and building size.”

Cross also raised similar concerns during a debate on the bill on Tuesday.

At the time, Roach, of North Fort Myers, countered that following hurricanes, it’s generally newer buildings, constructed up to the latest codes, that are still standing and aging ones are damaged. And, he added, many coastal residents don’t evacuate during hurricanes.

“This happened in Fort Myers Beach and in many areas of Lee and Collier counties and unfortunately people did lose their lives,” Roach said during the debate. “If they are going to stay in their home, I want them to stay in the safest home they can possibly be in.… This isn’t going to allow a Trump Tower to be built in St. Augustine Beach.”

Regarding new construction allowed to the maximum permissible on similar parcels in the same zoning district, Roach added on Wednesday that this merely means that municipalities have to “treat property owners who live in the same zoning area equally.”

Article Link: Florida legislature passes bill allowing demo of aging coastal buildings
Author: Lidia Dinkova

Florida Lawmakers Update Live Local Act But Leave 1-Mile Radius Intact

Glitch bill strengthens the law, while adding some protections for single-family neighborhoods

Florida lawmakers have passed a bill updating last year’s Live Local Act, offering some concessions to single-family neighborhoods while ultimately expanding the law’s purview even further.

The original Live Local Act was designed to increase workforce housing development, and its main provision allowed developers to bypass local zoning restrictions on projects where at least 40 percent of units are priced as workforce housing. The law requires local administrative approval, pre-empting community review.

Many local officials are critical of its top-down approach, concerned about the extent to which it interfered with their ability to manage city planning.

That is why the bill’s sponsors introduced the so-called 2024 glitch bill. “These are very large pieces of legislation,” Rep. Vicki Lopez, who represents the Miami metro in the state House, told Commercial Observer in a February interview. “There’s always more to improve.”

However, while the glitch bill was initially an attempt to assuage concerns of local officials, and came with the backing of the Florida League of Cities, an advocacy group, the final version kept two hotly debated provisions regarding building height allowances and where Live Local provisions can be applied, and then added new pre-emptions limiting the input of local governments.

“The original amendment to the Senate bill was a League of Cities amendment that was trying to give local governments back control of the issue,” said Keith Poliakoff, a partner with Government Law Group, who represents developers pursuing Live Local Act projects. “Fortunately, the Florida Legislature realized if they made those amendments it would undo [the original law]. So they actually made the law stronger to the chagrin of the local governments who were lobbying to make the law ineffective.” (The Florida League of Cities declined to comment.)

A key feature of the original Live Local Act was that developers can build up to the height of any building within a one-mile radius if a project met the Live Local affordability requirements.

Earlier iterations of the 2024 bill would have cut that radius down to a half-mile, but the final version keeps the one-mile radius, while carving out an exemption for single-family neighborhoods. In addition, lawmakers had debated whether to restrict Live Local’s application to industrial assets, but that remained intact.

To protect residential neighborhoods, the 2024 update requires that properties adjacent to single-family lots on at least two sides can be built up to three stories, the pre-existing allowed height in the zoning jurisdiction, or up to 150 percent of the tallest adjacent zoning jurisdiction.

“Instead of making a blanket change, [the law] was only enhanced in regards to that point of protecting single-family neighborhoods,” said Anthony De Yurre, a lawyer with Bilzin Sumberg, who was involved in developing the glitch bill.

The update law also expanded on the original version, introducing a floor area ratio (FAR) pre-emption parallel to the height and density allowances in the 2023 act, restricting FAR caps to 150 percent of the highest allowable FAR in the jurisdiction.

“There were two limitations to the original bill — one was FAR and one was parking,” De Yurre said. “We were given a new ceiling for density and height, but in many districts we ran out of square footage.”

The new bill also includes clarifications on how the Live Local Act interacts with other development bonuses or variances. In particular, the bill clarified that a Live Local Act project does not preclude a project from receiving other local development bonuses that affect density, height or FAR — and that these bonuses must be administratively approved. For example, projects that also qualify as transit-oriented developments can apply the associated bonuses.

Finally, the 2024 bill clarifies that the market-rate housing at a Live Local project can be for-sale units, allowing for a mixed project with market-rate condos and rentals with restricted pricing.

“It’s another opportunity for mixed income, which I think is the best part of the bill,” said De Yurre.

Meanwhile, residents feel completely blindsided by a planning process that essentially excludes them. During a public meeting addressing a 12-story Live Local project in Hollywood Beach, one resident registered her frustration. “We hear about the legislature, we hear about the governor,” Hollywood resident Helen Chervin said. “But he don’t live here. We do.”

The update bill has passed in both the House and Senate, and now goes to Gov. Ron DeSantis to await his signature.

Article Link: Florida Lawmakers Update Live Local Act But Leave 1-Mile Radius Intact
Author: CHAVA GOURARIE

Revisions Show Fla.’s Dedication To Affordable Housing Law

With the approval of significant revisions to a landmark affordable housing law they passed in 2023, Florida state lawmakers have reinforced their commitment to incentivizing an increase in much-needed housing supply, real estate attorneys and developers said.

The revised version of the Live Local Act passed 112-1 in the House on Wednesday following an earlier 40-0 vote in the Senate, but the ultimate version ended up with some surprises. While changes had been anticipated after tensions arose in some municipalities during the law’s rollout in regard to its preemptions of certain local controls on development and building size, several proposed pullbacks did not cross the finish line.

Florida Gov. Ron DeSantis is pictured in 2023. A revised version of the state’s landmark housing law, known as the Live Local Act, now awaits the governor’s signature after passing through the House on Wednesday. (AP Photo/John Bazemore, File)

In the end, the most notable revisions ended up expanding the law’s reach, the real estate professionals told Law360, with most expecting the changes to help move affordable and workforce housing projects along and encourage more in the future.

“While the original Live Local Act made great strides in incentivizing development of much-needed affordable housing opportunities for Florida’s workforce, in practice we have found the ability to deliver these projects is often limited by local regulations that required excess parking to be provided in urban areas and placed limits on the amount of buildable square footage that could be accommodated,” said Jorge L. Navarro, a land use shareholder in the Miami office of Greenberg Traurig LLP. “I believe with these recent additional changes, more developers will be encouraged and incentivized to develop under the Live Local Act.”

The changes in S.B. 328 will take effect immediately if signed by Gov. Ron DeSantis, with the exception of a clarification to tax breaks stipulated to apply retroactive to Jan. 1. Applicants who already submitted proposals under the original law would have the option of proceeding under those rules or resubmitting the plans under the new version.

More Density, Less Parking

A few of the changes stood out as likely to have the most impact in the minds of these professionals.

Every source pointed to a new preemption for Floor Area Ratio — or the alternative Floor Lot Ratio measure used in some jurisdictions — prohibiting local governments from limiting FAR below 150% of the highest currently allowed level in their jurisdiction.

As noted by Miami attorney Steven J. Wernick, who just joined Day Pitney LLP as a partner, the omission of local preemption for FAR, which determines the buildable square footage, prevented many Live Local projects from accessing significant boosts in allowed height and density included in the original law.

Greenberg Traurig’s Navarro pointed to “very limited” existing FAR regulations in many commercial districts in unincorporated Miami-Dade County that had been established to accommodate low-rise shopping centers and office buildings and said this change will “go a long way in making these commercial districts viable sites for redevelopment as workforce housing.”

Revised language clarifying that only the qualifying affordable units in a Live Local multifamily development must be rentals and allowing for developers to mix in market rate for-sale condo units should also have a major impact, several sources said.

“The allowance of residential condominium product that is for sale within Live Local developments is also extremely attractive for developers, as it allows for mixed-income and mixed-use projects, allowing the workforce to remain within urban cores while offsetting construction costs,” said Asi Cymbal, chair of Cymbal DLT Cos., a Miami-based investment, development and construction firm.

S.B. 328’s requirement for a 20% reduction in parking requirements for Live Local Act projects within a half-mile of a “major transportation hub” that has parking available for residences within 600 feet and for the elimination of parking requirements for projects within transit-oriented development zones also drew widespread attention, although Henry Torres of Miami development firm The Astor Cos, said he thinks the reductions need to be even more widespread.

“For the regular neighborhoods, that really doesn’t do a whole lot,” he said, noting that the current regulations in Miami-Dade County require more than one parking spot per unit, even though households in the studio apartments that he has planned for two Live Local projects tend to have one or no cars.

Another provision that drew mention from every source was a clarification that in determining the so-called “missing-middle tax exemption” in the law, local property appraisers must include a proportionate amount of the residential common areas and land on the property, in addition to just the square footage of the qualifying units.

“The expanded tax exemptions will further incentivize owners of existing multifamily buildings to designate units for workforce housing with reduced rental rates and assist with making construction of new workforce housing projects more financially feasible,” Navarro said.

Height Considerations

One of the most prominent changes initially proposed in S.B. 328 that made it through the Senate were revisions to the preemptions on height entitlements for qualifying projects.

The Live Local Act currently allows developers to build up to the greatest height allowed within a mile of the proposed qualifying development, but S.B. 328 was initially drafted to narrow that range to a quarter of a mile and to let local governments restrict the height to the higher of three stories or 125% of the tallest building on the adjacent properties, if all adjacent buildings are three stories or fewer.

The revisions appeared to possibly address opposition that arose in Miami Beach over a proposal to build a high-rise tower next to the city’s historic, mid-rise Ocean Drive strip. But the version that passed kept the 1-mile radius intact and added height restrictions only for properties adjacent to neighborhoods zoned for single-family homes.

Several sources said it was right to protect single-family neighborhoods, but some expressed surprise that the revisions stopped there.

“This change will provide for a more gradual transition of height and density from these submarkets into urban cores, which should benefit local municipalities and residents, Cymbal said, but he added, “We will have to continue finding ways for municipalities and developers to work together to preserve the existing character of an area.”

Similarly, Wernick said: “I had expected to see the legislature consider more carveouts for where there has been pushback from local communities concerned with loss of character. They did that with respect to protecting airport flight path areas, but I was surprised the legislature did not address the applicability of Live Local projects in historic districts or areas of critical environmental concern.”

Anthony De Yurre, a partner at Bilzin Sumberg Baena Price & Axelrod LLP, also said he was surprised that lawmakers decided to ban Live Local projects from areas near airports.

“Airports are large sources of employment for workforce tenants, and this prevents those employees from living closer to their jobs,” he said.

Government Law Group PLLC’s Keith Poliakoff, who has represented local governments and developers, also noted that lawmakers considered eliminating industrial properties from the field of those the Live Local Act opened up for affordable housing development but ultimately left that provision untouched.

“This law also helped to satiate the fears of developers who worried that the law could be going away,” Poliakoff said of S.B. 328. “There are numerous projects that have been sidelined by municipalities who had hoped the law would be amended in their favor. These changes will enable these projects to resume, which will help the legislature to produce its desired goal.”

Outlook

For the most part, the revisions drew predictions that they will keep the ball rolling on the Live Local Act and draw in more developers and lead to more affordable and workforce housing supply.

“Many developers were waiting for revisions to tweak projects or update pro formas,” De Yurre said. “I see the changes as enhancing the ability for these projects to get approved, financed and built.”

Day Pitney’s Wernick said he expects to see an increase in Live Local projects in the urban core and communities with mixed-use districts that are experiencing growth in population.

“S.B. 328 buttons up ambiguities from the original legislation adopted in 2023, giving comfort to developers who’ve been sitting on the sideline that the Live Local Act is here to stay,” he said.

Further clarification of the rules and regulations should draw in more developers, especially for mixed-use and mixed-income developments, Cymbal said, although he cautioned that there will still be projects that will end up not making financial sense to pursue.

Although lawmakers have shown a commitment to the Live Local Act and cleared some potential roadblocks that will likely entice more developers to participate, Government Law Group’s Poliakoff said more challenges are also likely to crop up.

“Unfortunately, I see more uncertainty created by many of these changes, which will prompt municipalities to modify their codes to block its applicability. As a result, I believe these changes will spur more litigation until the courts finally tell the local governments that they must apply the law as written,” he said. “I believe that this first amendment to the Live Local Act will certainly not be the last.”

–Editing by Haylee Pearl.

Article Link: Revisions Show Fla.’s Dedication To Affordable Housing Law
Author: Nathan Hale

Florida residents are in court over a cemetery’s future

Every morning, Elijah Wooten walks through the Westview Community Cemetery. On this particular morning, he’s wearing a loose polo shirt, slacks and a Korean War Veteran cap pulled down over his gray hair. The hair spills out from underneath the hat and runs down as sideburns.

He walks across the unkempt field of the cemetery, a landscape that shifts from uncut grass and weeds to dirt that turns to mud after a rain.

Cement vaults that cover graves are close together, offering little space for Wooten to reach his family’s plot. He’s got a slight wobble, but he keeps a good pace for a 91-year-old.

His family’s graves are covered in granite stone and inscribed with names and bible verses. They are among the most maintained of the 400 or so graves.

He picks up a plastic bottle and small cardboard boxes and takes them to the dumpster.

“Anything that I can do to make the place look better, I do,” says Wooten, who has lived in Pompano Beach his entire life.

The cemetery is lined with white-painted cement vaults. The first few rows are freshly painted in holy-white, but the condition of the cement vaults get progressively worse the further away you get from the cemetery’s entrance.

Most headstones, if they exist, are split or crumbling. Figurines of Jesus and the Virgin Mary lay on their side, missing limbs. And, in one case, a vault is cracked so badly that the casket underneath is exposed to the harsh rain and sun and moisture of South Florida.

The abhorrent state of the historic Black cemetery is at the center of a legal battle over who is in charge of its operation, upkeep and land — some of which was sold to a developer who planned to build an industrial office park until it was voted down by the city’s Planning and Zoning board last November.

The cemetery is run by a nonprofit board of four Trustees who were behind the 2020 sale. The board’s validity is being disputed in court by a new board, elected in 2022 by community members and made up of Pompano Beach residents, most of whom have family buried in the cemetery.

For some, it’s an example of the far reaching effects of segregation on Black communities across the country, who have largely relied on elders and activists to push for preservation with little help from municipal, state or the federal governments.

Antoinette Jackson is the chair of the Department of Anthropology at the University of South Florida. She has worked for years archiving and preserving the history of Black cemeteries in Tampa and around the country.

“That cemetery [Westview] is an example of what happens when there has been a continual tension of trying to maintain a cemetery with limited resources,” she said. “All those layers of things that they’re dealing with underscore the systemic nature of what segregation often meant to Black cemeteries and Black communities.”

Jackson runs the Black Cemetery Network, an online community that works to preserve archives and physical sites of Black cemeteries across the country. It started as a way for others like her to communicate about their preservation efforts.

“The big, thousand foot level is the preservation of history and the comprehensive understanding of communities, which come with acknowledgement that these cemeteries and these communities were there, and sometimes are still there,” she said.

Keeping that history alive in Black communities has long been the job of elders and activists.

Ramona La Roche has been part of many of those efforts throughout Florida and her homeland in South Carolina. Now she works to archive genealogies in Black cemeteries throughout the South.

She was part of a push to preserve the remains of 31 people buried under an auditorium in Charleston.

“They initially wanted to place the bones at another Black church. The community protested,” she said. Ultimately the bones were buried back in the spot where they were found.

“We marched from The College of Charleston back to the burial site and we actually put each of the remains in its own separate small box, and then they were put in one coffin, and then we reinterred it.”

La Roche says the City of Charleston paid for the burial celebration. In Florida, cities like Tampa and Deerfield Beach have bought back properties from developers who discovered human remains on the land.

Until recently, help from governments has been limited. Some states, like Florida, have moved to help the preservation of land and archives. Still, development is an ever-present threat to the land as the state’s population increases.

A Florida law, approved by Gov. Ron DeSantis last May, created a Historic Cemeteries Advisory Council and provided over a million dollars for organizations to buy land where remains were found.

Progress has been slower on the federal level, where the African-American Burial Grounds Preservation Act has been introduced in the Senate. It would make grants available for preserving African American burial grounds.

Westview Cemetery’s history dates to the 1950s

In 1952, Black businessman Paul Hunter donated the land — all 15 acres of it — to be used for burying Black residents after the city passed a racist law banning the integration of the city-run cemetery. Although the law has since been repealed, the cemetery still caters to mostly Black residents of Pompano Beach.

Burials are also inexpensive — $1,600 — which caused financial challenges for the current board, according to their former chair. They sold what they said was an unused parcel of about 5 acres for just over $1 million in 2020 and vowed to use the money to revitalize the cemetery.

Community members haven’t seen much improvement.

Residents challenged the sale of the land in court. That challenge failed.

The new owners, the development company KZ Copans, said they contracted a company to search for remains on the land but found none. Longtime city residents contest that claim.

The fate of what remains of the Westview Community Cemetery is now tied up in court.

In recent years, more public attention and awareness has emerged surrounding Black cemeteries and their erasure.

In 2015, Deerfield Beach residents came forward with testimony that land purchased by a developer held remains of their family members. It took three separate archeological surveys to find remains. The land was then turned into a memorial park with support from the developer and the city.

Cemetery land is sold

In 2020, unbeknownst to the Pompano Beach community, two members of the Westview Community Cemetery board signed away 4.3 acres of cemetery land to Jacob Zebede and KZ Copans for $1.29 million.

A year later, a group of residents sued to have the contract between the board and KZ Copans voided. They claimed the board had been running afoul of their own bylaws, which prohibited sale of any cemetery land and required nine members. This board only had four.

That lawsuit failed in 2020.

An appeal was also shot down by the state’s Fourth District Court of Appeal.

‘A second bite at the apple’

In January 2022, a group of residents upset at the state of the cemetery held a community meeting and started to vet candidates for a new board. They held elections in accordance with bylaws and formed a new nine-member board.

Last May, a group of four residents, including one newly named board member, filed a lawsuit against the old board, alleging they changed bylaws to work in their favor, stopped holding meetings and elections and allowed themselves to be paid for serving on the board.

Through the lawsuit, they hope a judge will rule that the newly elected members are the rightful Board of Trustees for the cemetery.

“I heard about what was going on, I just felt that it was wrong and I wanted to get involved because I wanted to help right the wrong,” said Sonya Williams-Finney, who was elected to the new board.

Williams-Finney grew up in Pompano Beach and has family buried at the cemetery. Because of bad record keeping, she does not know the location of her family’s graves. About 30 percent of the graves are unidentified, according to records.

In a motion to dismiss the lawsuit, the old-board’s lawyer Jonathan Heller, wrote that the new lawsuit is “trying to take a second bite at the apple, before a new judge.”

The judge in the case, Jeffrey Levenson, allowed the case to move forward and it is currently pending in county court.

‘Better be careful what you ask for’

During a Pompano Beach Planning and Zoning Board meeting last Nov. 15, Keith Poliakoff, an attorney for KZ Copans, gave a presentation to the board and dozens of fuming residents about his vision for Westview Cemetery’s future.

In a video portion of the presentation, workers are seen pressure washing and re-painting vaults that cover the caskets. However, when WLRN visited the site in January only a few rows of vaults near the cemetery’s entrance had been repainted and cleaned. Paint buckets were left sprawled throughout the cemetery near vaults and headstones.

The money from the sale — about $1.2 million — would pay for things like painting and pressure cleaning the vaults, paving the roads and a new irrigation system, according to a budget Poliakoff presented. He also said the developer pledged another $600,000 if the zoning change is granted. That money, he noted, would be used for a digital archive project and other improvements.

When Walter Hunter came to the microphone, he was berated by jeers. Hunter was the president and CEO of the cemetery board and initiated the sale of the land.

“The time has come to breathe new life into Westview Cemetery,” he said, calling the decision to sell the land as “the most difficult decision that we could ever make.”

Poliakoff’s mission was to get the board to change the zoning for the land so that KZ Copans could construct an industrial office building there. The board voted unanimously against the zoning change.

“The ownership will go back to the drawing board if it has to, and it will say, ‘okay, fine, if we have to turn this into a waste transfer station under the code, that’s what we’ll do.’ And sometimes, you know, you better be careful what you ask for,” Poliakoff warned community members.

Tundra King, a member of the Planning and Zoning Board, chastised Poliakoff and some of her colleagues who wanted to see documentation of the dedication of the cemetery.

“I’ve heard you go back and forth as to ‘there may not be history that’s in writing’ or ‘no one has been able to produce certain things in writing.’ You have the history sitting right here in the audience,” she said, referring to the dozens of community members.

“We know that a lot of things from the African American community back in that time was not properly documented.”

Vacant land and the future

The fight is not over. The Planning and Zoning vote was just a recommendation that the city and county now have from the board.

What those two governing bodies do and the result of pending litigation will shape the future of hundreds of Pompano Beach residents that wish to be buried near their families.

Broward County judge plans to start hearing arguments from attorneys in March.

As for Wooten, his fight to preserve his family’s graves at Westview continues.

“I’ve been doing this for the last, what, two years, two and a half years now. … Anything, anything, anything can be done that I can do to make the place look better, I do.”

Article Link: Florida residents are in court over a cemetery’s future
Author: Gerard Albert