Judge: City Attorney’s Actions “Blatantly Illegal,” Denies Motion To Dismiss Wawa Suit

Ariel Fernandez

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In January of 2021, the Gables Accountability Project (GAP) filed a lawsuit against the City of Coral Gables, Wawa and developer, Redevco, challenging the proposed construction of a Wawa gas station across the street from George Washington Carver Elementary School. GAP is “a Florida non-profit organization supported by Carver parents and other members of the community.”

In September, the City’s motion to dismiss the case was first heard by Judge Michael A. Hanzman, who provided for a 20-day period where GAP needed to explain why the case should move forward.

On Wednesday, January 5th, Hanzman heard arguments from both sides and rendered his judgement on the motion to dismiss.

The Basis For The Suit

GAP “challenge[s] the legality of the process that authorized it, insisting that “the City departed from the express requirements of the City Zoning Code and Comprehensive Plan by entering into a private contract” which waived “the mandatory public notice and meetings and opportunity for public comment otherwise required for approval of [this] project and instead [ allowed] the City Attorney and City Manager to administratively approve the project.” Id. As a result, “at multiple junctures members of the community were not given their due opportunity to raise legitimate questions, present evidence and have their concerns properly considered,” explains Hanzman’s decision. “To remedy this perceived injustice, Plaintiffs ask the Court to declare that the 2017 Settlement Agreement, the City Attorney’s Legal Opinion, and the “development approvals, orders, permits, or any authorization issued by the City in connection with the 2017 City Settlement [are] void ab initio, ultra vires, and unenforceable. Plaintiffs also seek injunctive relief ‘directing [t]he City to immediately rescind any approvals, permits, or any authorization in connection with the Property that, in whole or in part, arise from or are predicated upon the Settlement Agreement and/or Legal Opinion,'” it added.

The Hearing

One large question that Hanzman based his decision upon was the City’s approval of a request by developer, Redevco, to change the PAD from allowing for a restaurant to allowing for a gas station. Hanzman’s decision explains that, “as the City Attorney herself recognized, the developer was proposing ‘a new project that [required] significant modification of the site plan for Phase 2 of the Project.'”

“the City agreed, among other things, that: (a) “no other public hearings ” were required, including hearings before the Planning and Zoning Board; 10 and (b) that “any and all approvals [ would] proceed administratively to be completed by the City Attorney and City Manager as stated in Resolution 2015-303.”

Hanzman explains that the Court had precedent for cases of such nature. “As this Court explained in Cuesta v. City of Miami… if a municipality assumes a contractual undertaking that is illegal, ‘it is not rescued by the mere fact that it is contained within a contract settling litigation.'” He added a second case, Enterprises, LLC v. City of Naples which would clarify that “if the delegation embedded within Section 1.5 of the Settlement Agreement is illegal, then the City Attorney could not modify the 2014 PAD through the authority ostensibly provided by that private contract.”

Hanzman also asked about the Commission granting authority to the City Attorney to change the PAD. “I’ve looked at the 2015 resolution, which you suggest in your papers, confirm that story, and I see nothing in it that remotely gave her the authority to change the site plan or the PAD and the settlement agreement. There’s nothing in the record suggesting it was approved by the City of Commission. So where does this alleged authority to modify this paddy and site plan emanate from?” The City’s legal representatives explained that it was the 2015 resolution that authorized the City Attorney to enact the change. Hanzman pressed on, “then the city commission approved that settlement.” He received the same response. “I’m asking you whether it was approved by the city commission, whether by resolution ordinance minutes. Was it presented to the commissioners for the City of Coral Gables and approved before it was signed off on in 2017?” The City’s representative finally conceded that, “there is no specific resolution or ordinance that specifically indicates that the city commission ratified the settlement agreement or in the manner that you just suggested.”

City Attorney’s Actions “Blatantly Illegal”

During the hearing, Hanzman rendered his ruling by stating that, “to the extent that agreement confers upon the City Attorney authority to modify or approve the modification of the site plan or PAD, it is self-anointed authority that has absolutely no legal effect because one cannot delegate to himself the authority that he does not have. So it appears to this court that the plaintiffs position with this delegation was blatantly illegal.”

Hanzman also questioned the PAD change’s legality. “The city attorney herself acknowledged that this request from the developer to swap the site plan from the restaurant was, in her own words, a significant and material change to phase two of the site plan, or significant modification seems a bit disingenuous to the court if the city now comes in and says that it meets the criteria of a minor amendment in section 3-578 of the zoning code. I’ve read that section. There’s nothing about this amendment that seems minor to me, but it’s really irrelevant because they didn’t go through that process either. If there were no delegation to the city attorney, city manager and this were a minor amendment, then the code required that it be presented in the building and zoning department. Recommendations from other departments is needed, not the city attorney or even city manager.

Hanzman’s Decision

Hanzman’s written decision: “As this Court said in Cuesta II, ‘land use decisions can dramatically impact the health and well-being of a community.’ Cuesta v. City of Miami. That is precisely why municipalities enact, and are obligated to follow, detailed laws and procedures governing the process to be employed in making land-use decisions. Plaintiffs say that the City disregarded those laws here, depriving the public of input and delegating to the City Attorney the task of considering, and deciding, a proposed modification of the 2014 PAD which materially changed the use of Phase 2. Whether Plaintiffs are correct remains to be seen. But unless the City decides to have this “site plan modification” passed upon by the City Commission, in accordance with the procedure mandated by Section 3-506 of its Zoning Code, this case will proceed on the merits. The Defendants’ Motion to Dismiss is DENIED.”

City Attorney’s Perspective

“The City disagrees with the judge’s ruling and continues to believe that the Court lacks subject matter jurisdiction,” said City Attorney Miriam Ramos.

Prior to Hanzman’s written decision being published, Gables Insider asked Ramos about the Judge’s comments about her actions being illegal. She said the following: “We are awaiting the judge’s order, which is expected today, but my understanding of the judge’s ruling is that the City’s Motion to Dismiss, based on timeliness and lack of standing, is denied and that the judge allowed this independent action because he believes there is a viable claim that the underlying settlement agreement is illegal because it was not expressly ratified by the City Commission. Certainly, if I had believed that to be the case, I would not have proceeded in accordance with the agreement, but it is very clear that the City Commission was informed by the former City Attorney and aware of the process that lead to the settlement agreement, as well as the fact that the agreement included a delegation of authority.”

GAP’s Perspective

“I am very happy for my clients because the City has tried to marginalize and minimize their legitimate concerns from the moment these residents and GW Carver parents brought this secretly negotiated ‘behind closed doors’ deal to light. This is an important lawsuit because it is shining the light on how these bad projects keep getting approved in Coral Gables. We are going to force City officials, whose salaries we pay, to follow their own laws,” said Attorney David Winker, who represents GAP.

The Case Moves On

The three defendants: the City, Bahamian Village, LLC, Wawa Florida, LLC.; were provided 10 days to answer the complaint and the case will continue to be heard by the Court.

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12 thoughts on “Judge: City Attorney’s Actions “Blatantly Illegal,” Denies Motion To Dismiss Wawa Suit

  1. Too many folks are jumping the gun about what happened in court. Yes, the judge allowed the case by GAP to move forward, but nothing else concrete has occurred. Although, some might argue that the judge’s comments were excessive and indicate a bias against the City, that’s difficult to argue. I do not know why the City is of the position that the court lacks subject matter jurisdiction. Although not a “subject matter jurisdiction” issue, based on what Ms. Ramos stated, one of the City’s arguments might be “the commission knew what was going on with the settlement to allow WaWa to proceed, accordingly one or more members of the commission could have (? should have ?) taken action to stop it, but did not, and accordingly ratified the settlement through inaction.” If that is an argument being made by the City, and the commission’s time to take legal action expired, that still does not directly call into question the subject matter jurisdiction of the court as to the present dispute. Now the City is really pickled. The City got sued by GAP after believing they avoided a lawsuit by settling with WaWa, and now the City is worse off as they could still be sued by WaWa. They must be thinking that “the City was damned if it did, and damned if it did not.” Almost certainly, the appellate court will be asked to rule on this at some point, if not by an appeal taken by the City, then by an appeal taken by WaWa’s attorneys. None of the defendants can properly appeal from a denial of the motion to dismiss. However, they can appeal directly from an order that enjoins further construction or proceedings in compliance with the WaWa settlement.

  2. The city can moot the lawsuit by re-doing everything legally and get the same result. While procedure matters and the city must give all interested parties procedural due process, the end result also matters. Opponents must propose a better use for the land. As it is near a school, perhaps something complimentary that mitigates existing heavy traffic?

    Also, the mayor and commission must discipline the city attorney. The judge’s ruling makes her look really bad. She made a terrible call that has and will continue to cost the city a lot of money.

  3. Oh, where art thou, Mayor Lago?
    Still more interested in real estate commissions from Moishe Mana than the welfare of the children attending Carver schools.

  4. Lou S. asks: “How much have Gables residents spent on legal fees . . . ?”

    Do you really want to know? Send the City Clerk ([email protected]) a public records request for the legal bills the City has paid in connection with the case, i.e., Gables Accountability Project v. Wawa, 2021-001892-CA-01 (Fla. 11th Cir. 2021). So there is no doubt, mention you are requesting the records according to Florida Statute 119.

  5. The incompetence and corruption of City officials are revealed time after time after time. Exposing them is very commendable and a very good start. The next big step is to replace them with concerned residents who have integrity and who can restore trust in our government.

  6. City Staff once again acting on their own, protecting their interests, no regard for process or the citizens. When is it time to clean house, Mayor Lago? it’s time to act!
    thank you Gables Insider for the continued coverage. none of these stories would come to light without you. not from The Herald nor any of the TV or radio stations.

  7. THANK GOD for the hard work of the Gables Accountability Project, David Winker, and Gables Insider!

    I apologize that I earlier misperceived and mistated that the City of Coral Gables owned this land. I was wrong.

    Nonetheless, an ESSENTIAL role of government is protecting children, especially school children.

    The City’s role as non property owner is vastly reduced from my previous, misinformed, criticisms.

    Nonetheless, we need to stop this WaWa Station, because it endangers children!!!

    Special praise for DAVID WINKER.

    Sincerely,

    Jackson Rip Holmes

  8. Even while this suit is working it’s way through the courts, it appears that construction at the Wawa sight continues.
    Bottom line is there will be a Wawa, like so many other contested projects, we will have to learn to live with it.
    Cynical yes, but based on what I have observed while living in Coral Gables for over 30 years.
    I love our city, just wish it wasn’t so hard sometimes.

  9. I believe a Wawa gas station would be a better addition to the community vs a restaurant. A restaurant has a higher probability of failing which would negatively affect the community in the long run. I don’t know the legalities of the change in variance but I do believe the city has the community’s best interest in mind when they made this decision.

  10. How much have Gables residents spent on legal fees in the past 5 years due to irresponsible, incompetent, and unethical City commissioners and staff? Outrageous!

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