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Significant Engagements - Government and Regulatory

  


  • A & R CONTEMPORARY, INC.
    Berger Singerman is engaged in representing A & R Contemporary, Inc., v. Dept. of Revenue in the assessment of original artwork for sales and use tax for sales conducted in South America. The assessment is being contested because the Dept. of Revenue lacks jurisdiction for sales in South America and because it cannot tax items protected by the First Amendment. The outcome of this case is currently pending.

  • ADVANCED COASTAL TECHNOLOGIES
    Berger Singerman worked in conjunction with a lobbying group that introduced them to Advanced Coastal Technologies, Inc. (ACT) to draft legislation in the 2007 session which achieved 2 major breakthroughs for ACT. First, the new legislation allows property owners to use the ACT systems proactively to protect their property before it begins falling into the water. Second, the legislation precludes the Florida Fish and Wildlife Commission (“FWCC”) from unnecessarily requiring permit applicants to have an Incidental Take Permit (“ITP”), and thus a Habitat Conservation Plan (“HCP”), in every instance where an ACT system will be installed. Rather, there are specific criteria in the new legislation that provide safeguards for endangered species, including sea turtles, and FWCC must now evaluate whether, in light of these safeguards, an ITP is still needed to comply with the Endangered Species Act. The new legislation, which took effect July 1, 2007, also required DEP to draft rules consistent with the new legislation. Berger Singerman is representing ACT as it progresses through the rulemaking process before the Department of Environmental Protection and the Florida Fish and Wildlife Conservation Commission. The results of these various rulemaking processes will have a substantial impact on property owners across Florida who have permits pending for ACT systems, including those with permits in litigation, as well as new and existing coastal development across Florida. Continued success in the administrative realm will provide property owners across Florida a method of protecting their homes and investments, as well as the future of Florida's beaches.

  • BLUE VIEW DORAL
    Berger Singerman represented a developer of the parcel of land adjacent to the "Blue Monster" fairway at Doral. The developer encountered significant arsenic contamination in the soil and groundwater, as well as ammonia-nitrogen contamination which threatened the project from the outset. Berger Singerman assembled a technical team, and devised a cutting-edge technique to divide the site into grids, thereby allowing us to "average" the contamination levels in a manner that was most advantageous for the client, and thereby get DERM's No Further Action determination for the property. This novel approach to a potentially devastating condition resulted in the complete assessment and rehabilitation of the site, and the development of the site as planned, within budget and on schedule.

  • DOCKOMINIUM FOR MEGA-YACHTS IN AVENTURA
    Berger Singerman has been retained by Aventura Land and Development Corporation to develop an 18 slip dockominium for boats up to 80 feet in length in the City of Aventura. The site of the project is in the Biscayne Bay Aquatic Preserve and will require permits from Miami-Dade County, the Florida Department of Environmental Protection, and the U. S. Army Corps of Engineers. Because of concern for manatees and sea grasses, obtaining the necessary permits to construct boat slips is extremely difficult today. In addition to the environmental agency approvals, this project requires city site plan approval and may also require a change in zoning from the City of Aventura. Berger Singerman has worked with environmental scientists and engineers to design a marina that minimizes the environmental impacts to the surrounding waters and marine life. No fuel will be sold at the project and each slip will have sewage pump out facilities. The slips have been designed to have no impact on mangroves and seagrasses located on the property. The necessary permits for this project are currently pending.

  • ECOASSETS, LLC
    Berger Singerman is representing EcoAssets, LLC, a subsidiary of Lykes Brothers, Inc., one of the largest land owners in the United States. EcoAssets is in the process of developing a consulting business to assist other large land owners in the development and marketing of their land as a source of carbon credits to be sold on carbon credit trading exchanges established as a market-based approach to address greenhouse gas emissions. The program is one of the first of its kind in the country, and the business model is dependent upon Congress passing legislation institutionalizing the carbon trading process. Berger Singerman, in partnership with McGuireWoods, is advising EcoAssets on how to set up and implement this new consulting business, as well as assisting EcoAssets in negotiating consulting contracts.

  • EVERGLADES PHOSPHORUS RULE CHALLENGE
    From 2002 to the present, Berger Singerman attorneys have represented Florida’s agricultural industry on various matters relating to the setting of nutrient water quality standards in the Everglades. In December 2001, the State of Florida first undertook rulemaking to create a new Everglades water quality standard. Berger Singerman was engaged by the Florida Sugar Cane League (FSCL) to represent them before Florida’s Environmental Regulation Commission (ERC). Separately, Florida Crystals Corporation the Firm to represent it before the ERC. Berger Singerman worked cooperatively with the dozens of other stakeholders involved over the course of 18 months of ERC rulemaking hearings, in what became the ERC’s longest-ever rulemaking process. A final proposed regulation was promulgated by the ERC in June 2003. This led to a series of formal rule challenges, which are decided following a full trial by an independent Administrative Law Judge. Challenges were filed by several environmental groups, including the Sierra Club and Florida Audubon Society, the Miccosukee Tribe of Indians, and by our clients New Hope Sugar Company and Okeelanta Corporation. As the case proceeded through discovery a set of settlements were worked out whereby the issues with New Hope and Okeelanta and the environmental groups were resolved. This led to the contemporaneous withdrawal of the rule challenges by the Sierra Club, Florida Audubon and other related groups, as well as those brought by New Hope and Okeelanta. The Miccosukee Tribe and one other group, Friends of the Everglades, did not settle and the case proceeded to trial. New Hope and Okeelanta intervened to defend the regulation, with Gabriel Nieto representing them in those proceedings. Separately, we represented United States Sugar Corporation (a member of the FSCL) in intervening to defend defense of the rule. Following a multi-day trial and the filing of detailed proposed orders, our clients won on all counts. This was later appealed to the First District Court of Appeal, where we again won on all points. Following all of this in 2005, the Tribe and Friends of the Everglades filed a series of federal actions challenging the regulation and its enabling legislation. New Hope and Okeelanta intervened and have won several early key rulings.

  • FLORIDA SUGAR CANE LEAGUE
    Berger Singerman's Administrative Law Team represents the member growers and processors of the Florida Sugar Cane League (U.S. Sugar Corporation and Florida Crystals Company) on regulatory matters relating to the establishment of water quality standards in the Everglades.

  • FPL V. FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION
    Berger Singerman is engaged in ongoing representation of Florida Power and Light Company (FPL) in relation to emission trading systems under development by United States Environmental Protection Agency and the Florida Department of Environmental Protection (DEP). Last year, DEP promulgated a proposed rule that implements the federal “Clean Air Interstate Rule.” This rule sets up a pollution trading system for Nitrogen Oxide emissions from electrical power plants. DEP determined to allocate allowances for those emissions based on a fuel-biased system whereby plants fired by coal get 2.5 times as much credit for each unit of fuel as those utilizing natural gas. FPL has a fossil fuel portfolio that relied on almost no coal in Florida and instead utilizes oil and natural gas. Berger Singerman is presently representing FPL before the Third District Court of Appeals in ongoing challenges to the allocation system.

  • KENDALL PROPERTIES
    Berger Singerman is engaged in representing Kendall Properties and Investments as an intervening defendant in one of the most significant environmental cases now pending in Florida, Sierra Club v. Flowers. Kendall owns a lime rock mine that is part of the so-called Lake Belt, an area within Miami Dade County where eight companies have been mining over 50,000,000 tons of lime rock a year pursuant to federal, state and local permits in accordance with a “Lake Belt Plan” approved by the agencies.

  • LAKE BELT
    Berger Singerman is engaged in representing Kendall Properties and Investments as an intervening defendant in one of the most significant environmental cases now pending in Florida, Sierra Club v. Flowers. Kendall owns a lime rock mine that is part of the “Lake Belt,” an area within Dade County where eight companies have been mining over 50,000,000 tons of lime rock a year pursuant to federal, state and local permits in accordance with a “Lake Belt Plan” approved by the state and federal agencies. This lime rock is the source of approximately half of the aggregate used in Florida, the aggregate is critical to construction, road building and even environmental restoration projects throughout South Florida, and Lake Belt mining operations have an estimated $33 billion annual impact on the economy. Several environmental groups sued the Army Corps of Engineers to set aside the eight Corps permits on the grounds that they were issued in violation of the Endangered Species Act, the Clean Water Act and the National Environmental Policy Act. Most of the mining companies intervened early on in the litigation. Kendall joined after a Southern District federal judge had ruled on Summary Judgment that the permits had been issued contrary to those laws, and ordered a hearing to determine remedies. Kendall has special issues because it is the mine closest to the Everglades National Park, which has been of particular interest and concern to the judge, and so it has needed to present testimony and legal argument to address issues related to its proximity. The Summary Judgment Order had particularly identified seepage concerns relating to this proximity. Following 33 days of evidentiary hearings between June and December, 2006, in which all of the mining companies presented evidence on whether the mining operations should be allowed to continue, the judge issued an order immediately shutting down several of the mines. Kendall was not in the group subject to this immediate cessation, but the and was allowed to continue to mine pending the issuance by the Corps of a Supplemental Environmental Impact Statement. The matter is now on appeal before the 11th Circuit Court of Appeals, with oral argument scheduled for late November.

  • LAKE OKEECHOBEE BACKPUMPING
    Berger Singerman has been involved in another very significant matter in the Southern District, Friends of the Everglades v. South Florida Water Management District. In this case three environmental groups and the Miccosukee Tribe of Indians sued the South Florida Water Management District for operating certain pump structures on the southern rim of Lake Okeechobee, called the S-2, S-3 and S-4 pump structures, without NPDES permits under the Clean Water Act. The pumps are used only occasionally to “backpump” canal water in the Everglades Agricultural Area south of the Lake back into the Lake when flooding occurs in the EAA, thereby protecting municipalities and agricultural crops located in the EAA. This case and a companion one, Miccosukee Tribe v. South Florida Water Management District, involving the S-9 pump structure, are both premised on the proposition that pumping water from one water body of the United States back to another requires such a permit, though NPDES permitting requirements, with a couple of exceptions, have never been applied in this manner. (Historically, permits have been required for discharges to water bodies, not water transfers between water bodies.) The Miccosukee Tribe case has already been reviewed by the Supreme Court, and the law remains unsettled in this area. The firm has been representing the United States Sugar Corporation in this litigation as a intervening defendant. US Sugar owns over 100,000 acres of sugar cane fields adjacent to the southern rim of Lake Okeechobee, and relies upon the pump structures to irrigate its crops and protect its crops from being destroyed by floods, and thus has an important stake in the outcome of the litigation. After a hearing beginning on January 9, 2006, and ending on April 19, 2006, involving over 20 witnesses and 165 exhibits, the court ruled on December 11, 2006, that the pumping operations required NPDES permits. Plaintiffs then sought additional relief from the court in the way of imposing restrictions on how the SFWMD could operate its pumps, but the court declined to order any supplemental relief beyond the requirement that the SFWMD obtain permits. Both sides have appealed the ruling to the 11th Circuit Court of Appeals.

  • LARGE NEW URBANISM DEVELOPMENT IN DOWNTOWN
    Berger Singerman serves as land use counsel to Falcone Group, LLC which is redeveloping an eight block area of downtown Miami. The site plan is based on the principles of the new urbanism, a mixed use, pedestrian focused form of development that is being promulgated by the City of Miami in a proposed new land development code called “Miami 21.” The complexity and size of this downtown redevelopment project is unparalleled in Florida. The client is studying the great urban places in the world as models for the project. To lay the foundation for a project of this magnitude, Berger Singerman has worked closely with the City of Miami and its consultant, the renown Duany/Plater-Zyberk urban planning firm and the client’s urban design firm over the past year on the development of Miami 21. Berger Singerman, working with the client’s urban design firm, has tested the proposed code against the land development codes from existing great urban places and have recommended numerous code improvements that have been incorporated by the city in the draft of Miami 21. At the same time, Berger Singerman has worked with the client and the client’s urban design consultant to prepare alternative designs for the proposed project. Miami 21 is scheduled for first reading in December or January.

  • MAGELLAN MIDSTREAM PARTNERS
    Berger Singerman represented Magellan Midstream Partners in its bid to refurbish or replace a complete tank farm in Port Everglades. The bid process led to a bid protest. We succeeded in having all original bids thrown out and to start the bidding process again. The selection committee ranked Magellan in first place and they will invest approximately $80 million in the project and construction is expected to take approximately 3-4 years.

  • MIAMI-DADE COUNTY CLASSROOM TEACHERS' ASSOCIATION, INC.
    Berger Singerman is engaged in representing Miami-Dade County Classroom Teachers' Association, Inc. v. Miami-Dade County Property Appraiser in a case to determine whether or not the Teachers' Association is liable for the back taxes owed on a piece of property for the 2006 and 2007 Tax Years. During those tax years, the owner of the Property was Grouper UTD, LLC. Grouper had purchased the Property from the Teachers' Association and the Teachers' Association had given Grouper a purchase money mortgage. When the Teachers' Association had owned the Property, the Property Appraiser had applied an exemption to its use of the Property. For reasons unknown, the Property Appraiser continued to apply an exemption to Grouper's ownership and use of the Property in the 2006 and 2007 Tax Years. Sometime during the course of the Teachers' Association's foreclosure of the property in early 2008, the Property Appraiser realized its mistake and assessed the Property for back taxes. The tax liability was not known until long after the Teachers' Association purchased the Property in a foreclosure sale. The outcome of this case is currently pending.

  • OAK TREE LANDING, LTD.
    Berger Singerman represented Oak Tree Landing in connection with securing State of Florida and Gilchrist County Florida approvals of amendments Gilchrist County's comprehensive plan to allow development of a small town in a rural agricultural setting. Such plan amendments are reviewed by surrounding counties and cities and NGO interest groups. The value of the land without the development approvals is approximately $8 million. The plan amendement approvals increased the residential density on the 850-acre property from 1 unit per 5 acres to 1unit per acre and added 100,000 square feet of commercial use and 100,000 square feet of lodging use to the property. The present value is in excess of $8 million.

  • REVISIONS TO ZONING CODE IN TOWN OF DAVIE
    Berger Singerman was retained by U-Pull-It of Broward, Inc. to prepare amendments to the Davie land development regulations to allow an existing non-conforming automobile and scrap metal recycling business to become a conforming use. The client wanted to construct new buildings on property to improve recycling operations, but could not obtain building permits because the use was non-conforming. The Town was concerned that allowing the existing use to continue would jeopardize town plans to encourage redevelopment in the industrial park district to provide mixed uses, including workforce housing adjacent to a planned transit rail line. Berger Singerman worked with Town of Davie staff beginning in November, 2006 to prepare amendments to the Town code that allowed the recycling business to become a conforming use while requiring buildings, walls and landscaping be placed to insure that the facility would not adversely impact Town plans for long term redevelopment of the district.. The amendments were approved in a series of public meetings before the Davie Local Planning Agency and ultimately won Town Council Approval in June 2007. U-Pull-It is presently seeking rezoning in conformance with the new code and is preparing building permit applications for the new building and landscaping.

  • RITZ PLAZA HOTEL, MIAMI BEACH, FLORIDA
    For the past two years, Berger Singerman has been working on a heavily contested development project at the Ritz Plaza Hotel in Miami Beach. The Ritz Plaza is a historic hotel purchased by our client, Makar Properties. The Ritz Plaza is designated as a historic structure and is located in the art deco architecture preservation district in Miami Beach. In order to restore and update the hotel to current building code requirements, we have worked closely with the City of Miami Beach and its Historic Preservation Board staff to secure approvals for renovation of the hotel and resolve conflicts with historic preservation and modern building code requirements. Berger Singerman also secured Historic Preservation Board approval for development of an additional hotel building between the existing hotel and the beach on the site of the pool and cabanas. While the certificate of appropriateness for the proposed addition was approved by the City in 2005, litigation by adjacent hotel owners ensued over the Historic Protection Board's approval of the project, leading to a remand and a protracted series of hearings. In December 2006, after working with our architects to redesign the new building, we secured final Historic Protection Board approval of the addition to the hotel. The adjacent hotel owners again appealed the Historic Protection Board certificate of appropriateness for the revised addition. Following extended negotiations with the adjacent owners, in February 2007 the new addition was final as approved by the Historic Protection Board in December. Construction and renovation of the Ritz Plaza Hotel is presently underway.

  • SOUTHERN FACILITIES DEVELOPMENT, LLC
    Berger Singerman is engaged in representing Southern Facilities Development, LLC, v. Broward County Property Appraiser. In 1999, Southern leased two properties from the City of Fort Lauderdale for 50 years. The leases require the properties to be developed for industrial use. Southern has attempted to develop the properties since 2000, but has not been able to because of environmental contamination on the properties. In assessing the properties, the Property Appraiser was required to consider the condition of the properties, among several other factors. Upon information and belief, the Property Appraiser has failed to consider the environmental contamination of the properties in determining their value. The outcome of this case is currently pending.

  • TINDALL HAMMOCK
    Berger Singerman filed a mandamus action against the Florida Department of Environmental Protection (“DEP”)in case of Tindall Hammock Irrigation and Soil Conservation District v. Florida Department of Environmental Protection, for DEP's failure to issue the District a domestic wastewater permit in a timely manner.  The matter at issue involves complex issues associated with whether or not the District's activities require a NPDES permit under the Clean Water Act and whether the DEP's failure to act on the permit in a timely manner entitles the District to issuance of a permit by default.  DEP has finally issued a draft permit in response to the lawsuit.

  • TOWN OF SOUTHWEST RANCHES, FLORIDA
    In July, 2005, Corrections Corporation of America ("CCA") entered into an agreement with the Town of Southwest ranches to develop a privately owned and operated correctional facility in the West Broward Industrial Park, subject to all necessary development approvals. For the past two years Berger Singerman has been working on securing the necessary agreements and approvals for the proposed correctional facility. In late 2005, we were successful in amending the plat note. In July 2006, we obtained site plan approval by the Town Council. Since that time, we have been moving forward with the activities incident to a development of this size, scope and impact, including access road construction permits, impact fees, water management permits, and securing necessary utility service agreements. In June 2007, the Town Council approved CCA’s request for a six-month extension of the site plan approval. We are currently preparing a ordinance for the Town enabling use of development agreements and will be preparing a development agreement between CCA and the Town to extend the site plan approval for an additional period of years.

  • WASTE MANAGEMENT CORPORATION, BROWARD COUNTY
    For the past five years, Berger Singerman has been lead counsel in an ongoing dispute between a major private waste disposal company and multiple South Florida municipalities. The dispute involves the County-wide solid waste disposal system and the cities’ disposal obligations. Detailed capacity, contractual and permitting issues, as well as the state and federal solid waste regulatory scheme were litigated. Berger Singerman worked closely with the cities and our client to craft a solution that balances complex inter¬ governmental and public and private sector considerations. Faced with possible contract termination, the result ultimately achieved both preserved our client’s relationships with the affected public bodies, but also lead to the expansion of those relationships thereby creating substantial revenue opportunities for the client.

  • WHEELABRATOR
    Berger Singerman's Administrative Law Team advises Wheelabrator regarding its contractual relationships with Broward County and its provision of services to many of Broward's municipalities.