Article Courtesy of The Palm
Beach Daily News
By William Kelly
Published August 17, 2017
The town is asking a judge to rule in its favor without a trial in its legal
battle with two residents over the payment plan for the utilities undergrounding
The town filed the motion for a summary judgment Tuesday in Palm Beach County
Circuit Court against Carol Kosberg and Michael Scharf, whose lawsuit challenges
special assessments on property owners.
“Hopefully, we will have a quick
resolution of that matter,” Town Manager Tom Bradford told
the Town Council Wednesday.
A hearing date has not been set.
Meanwhile, the council approved $175,000 to pay for legal
counsel, consulting and experts to fight the Kosberg/Scharf
suit and another class action suit filed Aug. 1 by PBT Real
Estate LLC, based at the Palm Beach Towers condominium
building. That suit, also filed in Palm Beach Circuit Court,
alleges the owners of the 273 units at the Towers building
at 44 Cocoanut Row should not be assessed because the
building already has underground utilities. The Towers’
condo association has disavowed any connection with the
Town Attorney John Randolph said the town plans to file a
motion in the PBT Real Estate suit similar to the one filed
in the Kosberg/Scharf case.
Kosberg, a South End condominium owner, and Scharf, a
North End resident and former zoning commissioner, sued the
town July 28, alleging the special assessments are invalid
because the town relied on a consultant’s “arbitrary
assessment methodology.” The consultant’s report
“hypothesized” special benefits of safety, reliability and
aesthetics based on a property’s size, density, location and
other factors, they contend in the suit.
Bobbie Lindsay, from left, Tony Dowell, Richard Kleid
and Julie Araskog and Tom Bradford attend a groundbreaking ceremony
for the utilities undergrounding project at Phipps Ocean Park in
Palm Beach on Aug. 4, 2017
The residents want a judge to certify the case as a class action, declare
the special assessments void, and permanently block the town from imposing
In its motion, the town noted that a judge recently ruled in its favor in
another legal case involving the utilities project. In that instance, South
End resident Arthur Goldmacher asked a judge to void the result of a March
2016 referendum in which voters approved up to $90 million in bonds to
finance the utilities project, secured by the special assessments.
Goldmacher argued the town misled voters in the ballot language about how it
intended to repay the bond debt. Palm Beach Circuit Judge Cymonie Rowe
disagreed, granting the town’s motion for a judgment without a trial.
“In essence, Kosberg and Scharf are simply unwilling to accept the results
of the vote and the effect of this court’s ruling determining the validity
of the bonds and allowing the town to proceed to issue bonds …’’ the town’s
The town also notes that the court has “validated bonds, secured by special
assessments based on similar categories of benefits and methodology, for the
Town of Gulf Stream and Jupiter Inlet Colony.”
Goldmacher has appealed the judge’s ruling to the 4th District Court of
Appeals in West Palm Beach. Kosberg has dropped an earlier lawsuit she filed
against the town, also challenging the referendum.
To date, the town has spent $168,000 battling the original Kosberg suit and
the Goldmacher suit. The legal costs are not part of the underground
utilities budget and are not paid with the special assessment revenue.
Instead, they are paid by the taxpayers of the town, Town Council President
Richard Kleid said.