Palm Beach Towers. File Photo
A lawsuit challenging the town’s plan to finance its utility undergrounding project remains alive after a Palm Beach Towers property owner recently filed an amended complaint.
Filed last year in the U.S. District Court for the Southern District of Florida, the suit attacked on Constitutional grounds the town’s plan to pay for the island-wide utility burial with special assessments on property owners. The suit cites the 14th amendment of the U.S. Constitution, which addresses citizenship rights and equal protection of the laws.
The suit contends that owners of the 273 units at the Palm Beach Towers should not be assessed by the town to pay for the undergrounding project because their utilities already are buried and because the distribution system that serves the Towers, at 44 Cocoanut Row, also is already underground.
The Towers’ board of directors has said it is not involved with the litigation.
In February, the court granted the town’s motion to dismiss the suit but allowed the plaintiff, PBT Real Estate LLC, which owns a unit at the Towers, to file an amended complaint.
That amended complaint was filed on March 19. It says the town is arbitrarily imposing special assessments against PBT Real Estate’s property, without conferring any benefit on it. “The Special Assessment, without benefit to PBT’s Property, is an unconstitutional tax,” it states.
Edward A. Dion, the Fort Lauderdale lawyer representing the town, said the town would file another motion asking that the suit be dismissed.
PBT Real estate LCC originally sued last year in Palm Beach Circuit Court. In addition to the town, it named Palm Beach County Property Appraiser Dorothy Jacks and Palm Beach County Tax Collector Anne Gannon as defendants.
Last year, the suit was moved to U.S. District Court, with Becker & Poliakoff, a Fort Lauderdale law firm, responsible for its defense. It was originally filed by John D. O’Neill, PBT Real Estate’s registered agent. He is a West Palm Beach resident and an attorney.
The special assessments also are being tested by another law suit in state court. In that lawsuit, filed last year in Palm Beach Circuit Court, South End resident Carol Kosberg and North End resident Michael Scharf allege the assessments are invalid because the town relied on a consultant’s “arbitrary assessment methodology.”
They are asking a judge to certify the case as a class action, declare the special assessments void, and permanently block the town from imposing special assessments. A judge has denied the town’s motion to dismiss the case. A hearing date has not been set.
The courts have dismissed a third lawsuit that challenged the utility project.
In that case, South End resident Arthur Goldmacher filed a suit challenging a 2016 referendum in which voters narrowly approved a $90 million bond issue to finance the town-wide burial of overhead (the town plans to use the assessment proceeds to repay the bonds).
On March 15, a three-member judicial panel in Florida’s Fourth District Court of Appeal in West Palm Beach upheld Palm Beach County Circuit Judge Cymonie Rowe’s dismissal of Goldmacher’s lawsuit. Last year, Rowe found that the referendum ballot language was neither misleading nor illegal.