A resolution approved by the Islamorada Village Council in 2024 to abandon a portion of the Orange Street right-of-way was recently quashed in court.
According to Circuit Court Judge Tim Koenig’s order on March 25, the village council didn’t apply the plain and unambiguous village code to determine whether petitioners Mary Barley Family Trust and Prinston LLC were adjacent to the applicant’s property and deemed an affected property owner.
During an April 11, 2024 meeting, village council members voted 3-2 on the request by MM 82.790 LLC, the Sandal Factory, to abandon and vacate a portion of the right-of-way. It consisted of a 200-foot-long by 20-foot-wide piece of land abutting the storefront. Attorney James Lupino made the request on behalf of Sandal Factory for the right-of-way abandonment.
The small strip of land, a remaining fragment of Orange Street, was part of an old road no longer existing and effectively part of private property it abuts, the village stated. It’s long been used for parking by prior businesses and Sandal Factory, which acquired the property in 2021.
Council members were tasked with determining whether the right-of-way was still needed by the village or the public, and whether it was in the best interests of the village to abandon and vacate the right-of-way. Language within the resolution stated all affected property owners and utility companies did not object to the proposed abandonment of the right-of-way.
Attorneys with Coffey Burlington representing the plaintiffs, however, said village officials incorrectly advised council members that they had the authority to abandon the village property despite the objection.
The hearings
A hearing over the abandonment was first held on July 20, 2023. Before the meeting, a letter was issued to property owners located within 300 feet of the proposed right-of-way abandonment. In response, the village received five letters stating no objection and two emails acknowledging objection to the abandonment. Mary Barley also acknowledged her objection to the proposal during the hearing.
Despite the objections, a staff report recommended approval of the request. During the meeting, Planning Director Jennifer DeBoisbriand recommended the council approve the right-of-way abandonment application. Council members and some residents noted during the discussion that the Orange Street fragment had been used as a parking lot for decades.
Barley’s attorney not only objected to the abandonment, but also presented a conceptual rendering showing a proposed new parking and pedestrian plan for implementation by the village. Council members, however, continued to mull the abandonment request. The matter was ultimately continued to April 11, 2024.
Ahead of the 2024 meeting, Barley submitted another letter of objection with the property at issue. A staff report was again prepared recommending approval. Following lengthy discussion and consideration, the village council approved the abandonment request. Then-council members Mark Gregg and Buddy Pinder approved the resolution, as well as current Mayor Sharon Mahoney. Then-council members Elizabeth Jolin and Henry Rosenthal voted against the abandonment.
Challenge filed and village responds
By May 10, 2024, Barley filed a request for a higher court to review the decision. It claimed the village acted contrary to plain language of its own governing ordinances, which prohibit abandonment of a public right-of-way. Under village code, an objection from any affected property owner requires denial of the abandonment request.
Attorneys representing the village urged the court to dismiss the claim, stating Barley didn’t have standing to challenge the resolution approving the abandonment. The village, in its response to the claims, said Barley was unaffected by the abandonment since the cited portions of the record plainly reflect the referred-to parcel does not share a boundary with the Sandal Factory property.
“Petitioners do not claim that they have lost access to their own properties, but only that they have lost access to the area of abandonment, the 200-foot strip of former Orange Street that is now part of Sandal Factory’s parking lot. Thus, their alleged injury or concern is the same as any given member of the public, meaning both that their objection did not tie the hands of the council under the code, and that they otherwise lack standing to complain under Florida law.”
The village response further stated the petitioner’s professed concerns over pedestrian and bicyclist safety do not serve as grounds for the court to quash the village council’s decision.
“The village in fact asked the Sandal Factory owner to apply for the abandonment, which would get the remnant Orange Street fragment ‘off the books’ of the village and could increase the village’s tax base. Accordingly, the Sandal Factory Owner filed the application on September 15, 2022,” reads the village’s response.
Questions surrounded meaning of affected property owner
According to Koenig’s order, the petitioners’ proximity to the right-of-way abandonment had enough standing to seek review of the approved resolution. Barley testified that she owned the properties next to the property at issue.
In land-use cases, abutting homeowners ordinarily have standing by virtue of proximity to the proposed area of rezoning, states Koenig’s order, as he referenced a 2023 case between Save Calusa Inc. and Miami-Dade County that went to the Third District of Appeals.
Village code has two pertinent provisions governing the abandonment of public rights-of-way. One says the village council should find there’s no public interest in continued access to the right-of-way. The other states the council should not grant the abandonment unless affected property owners agree.
Per the village code, “affected property owner” means a property owner adjacent to the applicant’s property or, by virtue of a proposed abandonment, will have access which is currently used by that property owner eliminated, have the only platted access eliminated, have the paved area adjacent to that property increased for turn-around purposes or be increased in size.
“Part of this analysis required the village council to determine if petitioners were ‘adjacent to the applicant’s property.’ The record does not show that the village council engaged in this analysis, which violates the essential requirements of law,” read Koenig’s order.
Paul Schwiep, attorney with Coffey Burlington, said the order is a win for the village residents, as it prohibits the village from moving forward with giving away property to Sandal Factory, without any compensation or restrictions to ensure safety of pedestrians, bicyclists and motorists.
“The court rightly found that the council cannot ignore the objections of affected village property owners,” Schwiep said.
Ty Harris, attorney representing MM 82.790 LLC, told Keys Weekly his clients will be appealing Koenig’s order. The village, too, will file an appeal.
