Wednesday, July 18, 2018

To Be or Not to Be, Part 1: WHEREAS

I remembered quickly in the last weeks...
As stories about the Beckham group soccer deal coalesced around a last minute vote of the City of Miami Commission to approve a referendum on leasing public land. A soccer stadium deal, eventually revealed as a gigantic real estate deal for a local hotshot.
I remembered: No matter what happens it seems the people will lose.

Much closer to home, the County Commission voted in June for a referendum in my neck of the woods, North East Municipal Service Area, an unincorporated sector of the county, will get to choose to become a city. However this offer comes with many strings, and lots of loopholes. Citizens beware.

I continue my series with an extensive analysis of the June 5th, 2018 resolution. I plan at least two more posts on this county law, with a particular concern for responsibilities or debts the proposed city would owe the county from the start.

Warning Signs

Totaling over 71 pages, the entire packet for the resolution has many points from which to start picking knits.On page 46 find the actual text of the ordinance. Regardless of all the accompanying literature the only part of this packet which represents law is the ordinance as read and passed by the Board of County Commissioners.
For the purposes of this post I plan only to deal with the ordinance language and its implications for the referendum in November.

Ordinance Title
And what a long title it is!
This mouthful of a sentence says almost everything, while leaving out so many important things.
This is technically the first sentence of the ordinance itself. These types of laws generally get introduced with a series of statements of facts. This opener references two important segments of county code pertinent to establishment of new municipalities, Section 6.05(A) of the Miami-Dade County Home Rule Charter and Chapter 20 of the Code of Miami-Dade County. I expect to read these soon and comment on them in another post.

This WHEREAS provides the first actual actions of the ordinance, note the language closely. "This resolution proposes calling a special election for area resident electors to authorize [Board of County Commissioners] take additional actions necessary to create a new municipality." Therefore the referendum actually authorizes the BCC to create the new city, not poetically the people themselves creating it through the vote.
Then we get boundaries laid out, including "as is generally set forth in the map attached." The repetitive description of the boundaries in the ordinance make it difficult to determine which are the actual, technical boundaries of the proposed municipality.

Note various oddities in this map, including a right of way along interstate 95 ending at Snake Creek Canal; the inclusion of the open space park portion of Greynold's Park, despite the ordinance elsewhere specifying the county would maintain control.

I take issue with some of the language in this third WHEREAS because although she did it with the power of the BCC, all members of the NEMAC were appointed by the district 4 Commissioner, and not the Board as such. What's more, this description of the duties of the NEMAC fall short in addressing the very particular statutory responsibilities of the NEMAC. Please see a future post regarding the creation of the NEMAC and the language specifying its purpose and responsibility.

This language fails to depict the BCC as creating the NEMAC with the express requirement of it submitting a report to the BCC, based on information provided by county staff, the content of which were specifically meant to respond to the concerns of the BCC and County Staff. I hope the circular nature of that process didn't lose your attention.
Due to the length of these posts I will also address the Exhibit B resolution by the NEMAC in another post. Especially because this is where things start to get very interesting in the ordinance.

This WHEREAS explicitly lists the demands of the BCC
"As required by the Code," in this WHEREAS suggests that everything to follow simply complies with the County Code. Definitely something worth verifying! However until I get to that let me simply restate these requirements of incorporation, along with my first thoughts:

  1. Contract with MDCPD for patrol police services for an initial period of three years. Do we have to do it for one three year term, can we do three one year terms? Who negotiates this contract, or do we have to accept a predetermined contract for the duration of the three years?
  2. Contribute to County's Municipal Service's Trust Fund (MSTF) in an amount which sall be determined by the board. Woah! Shall be determined by the board? Again I have to wonder who will, or is even allowed, to represent the fiduciary interests of the elector residents? What recourse do we have that the determination will fairly represent our reasonable debt to the trust fund?
  3. Agree to remain part of MD Fire Rescue District, Public Library System, Solid Waste collection system. As with everything else, I wonder about the money. If we're a "donor" community it suggests we overpay for some if not all the services provided by the county. How can we assure the charges levied against us for these services get accounted for properly.
  4. Contract and pay for specialized services from MDCPD, but will not be required to additionally pay beyond countywide taxes paid by residents. The language here is particularly confusing. It seems like we need to contract for special services, even though we don't have to charge extra for them? Because we already pay them? If we already pay for everything it worries me that they're mentioning it at all. I have found information elsewhere regarding this item and hopefully that will clarify this point.
  5. Be responsible for and pay respective share of debt service with any debt made on behalf of the unincorporated area. Who makes sure that we're ONLY paying our respective share? How much of the Greynold's mark remodeling will the new city have to pay for? How much money have they actually spent on our behalf? This is another project which would require hours and hours of research and compiling data to make sure that reality matches up with whatever numbers the county submits.
  6. BCC retains authority over declaration of restrictive covenent or development agreements in place at the time of incorporation. I don't yet know what either of these two things are, but I have to wonder what they are and how many exist right now that the BCC will retain authority over, and what impediments if any that can give to a new municipal government.
  7. County will retain regulatory jurisdiction over certain facilities, as may be revised from time to time. This one more than any other one sticks out to me like a sore thumb for the phrase "as may be revised from time to time" because this suggests, at least upon my initial understanding, that the county can claim regulatory jurisdiction of other facilities if they see fit. I wonder the scope of regulatory jurisdiction, and what OTHER jurisdiction that leaves for the new municipality to retain. Finally, the residents should sufficiently understand exactly which facilities the county plans to maintain as well as its history and plans for these facilities.
I think these are serious concerns that need clarity before I can decide if I support this ordinance.

To leave no doubt in anyone's mind the ordinance makes it clear that those seven requirements are pre-agreed by the resident electors if they vote for incorporation. Despite the vague terms the new city must honor them with the county. The final portion describes the only way to change that, which hinges on what section 6.05(A) of the Charter means  by "prior to a vote of the qualified municipal electors." Does that vote refer to the one for incorporation, where I believe we would be called resident electors, or does it refer to the second vote, after incorporation, approving the charter? That's an extremely important distinction and the difference between having to submit any changes in the next few weeks or instead several years to submit changes for BCC approval.

This suggests another document for me to read, the PAB resolution attached as Exhibit C. It seems in this WHEREAS that the PAB recommended the new city have regulatory control over Ojus, but the county ignored that suggestion. You can't tell that from this language here, but it should be showing up eventually.

Another document to read, the reading never ends!

You might think this WHEREAS very fishy because it suggests that the Mayor's recommendation is not a part of the Code. He recommends the new municipality mitigate the fiscal impact of incorporation on the county by paying seven annual fees based on the net loss to the Unincorporated Municipal Service Area, as determined by the Office of Management and Budget's "Estimated Impact on UMSA Budget." Mind you, they don't include this document in the ordinance, and yet again I have the feeling that the residents don't have anyone defending km their fiduciary interests in any of these financial impacts.

And yet again, conditions which aren'tp ml very clearly or reasonably established are "pre-agreed conditions to the incorporation." I wonder what discussion if any the Commissioners had regarding these conditions.

"Areas of Countywide Significance persuant to sections 20-8.6 and 20-28.1 of the Code, which would allow the County to retain regulatory jurisdiction over such areas for the purposes of comprehensive planning, zoning, and buildings and other development approvals." Which begs the aforementioned question of what other jurisdictions that leaves to the city, and if the city retains regulatory jurisdiction over the same areas for all purposes not categorized in the WHEREAS?

Seems self explanatory, but if anyone has any comments, please let them with me.

I have a lot of interest in the way the Board creates the charter committee, and whether or not section 6.05(A) addresses that or leaves it to the Board to set specifics. I also find it interesting that they will only choose 5 members of this committee. I would like to compare this to other examples of incorporation in Miami-Dade County.

And here again it gets laid out that ALL the demands made of the new municipality will be special conditions in any charter that this committee would submit to the Board.

Self explanatory, except reference again to the Charter
With the WHEREAS now out of the way, I will focus my next post on deconstructing and addressing the resolution section of this ordinance.
Also look forward to which roads the county plans to keep control of, and what exactly is the Ojus Urban Area District?

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