Article Courtesy of The Palm Beach Daily News
By William Kelly
Published August 10, 2017
Palm Beach is facing a second class-action lawsuit in a
week challenging its plan to assess property owners to pay for burying all
utilities in town.
The suit was filed Tuesday in Palm Beach Circuit Court on
behalf of PBT Real Estate LLC, based at the Palm Beach
Towers condominium building at 44 Cocoanut Row. It names the
town, Palm Beach County Property Appraiser Dorothy Jacks and
Palm Beach County Tax Collector Anne Gannon as defendants.
The suit contends owners of the 273 units at Palm Beach
Towers should not have to pay assessments for the town-wide
undergrounding project because the Towers’ utility system
already is fully underground.
The special assessments are “arbitrary and capricious”
because the town has provided no evidence that the town-wide
undergrounding project will benefit Palm Beach Towers
condominium owners, said John D. O’Neill, the registered
agent of PBT Real Estate, a West Palm Beach resident and an
attorney who filed the suit on behalf of PBT Real Estate.
Palm Beach Towers in 2015. Meghan McCarthy
On Friday, South End resident Carol Kosberg and single-family homeowner
Michael Scharf filed a class action complaint challenging the Town Council’s
recent decision to impose special assessments on property owners, beginning
in November, to pay for an estimated $90 million town-wide burial of all
overhead power, cable television and telephone lines. The annual assessments
are for 30 years.
Kosberg and Scharf, a North End resident and former zoning commissioner,
claim the town is using an arbitrary method to determine the amount each
property must pay.
Town Manager Tom Bradford said he had not seen PBT Real Estate’s lawsuit and
could not comment on it. But Bradford said earlier this week that the town
is using a methodology similar to others that have been approved by courts
in Palm Beach County.
Jacks is named as a defendant because as property appraiser her duty is to
add the special assessments to the tax bills. Gannon is named because as tax
collector it’s her duty to collect the money. Both Jacks and Gannon declined
The assessment methodology used by the town assigns benefit units to each
property based on the aesthetic, safety and service reliability that a
town-wide underground system would provide.
In its suit, PBT Real Estate contends that, for the special assessments to
be constitutional, the town must confer that the undergrounding will provide
a special benefit particular to each property and distinguishable from the
general benefits the undergrounding would provide to the town as a whole.
But the suit states that the Palm Beach Towers already has underground
utilities and is served by a dedicated distribution line separate from the
town-wide utility system.
Palm Beach Towers properties “are not serviced by or connected to above
ground utility lines on the island of Palm Beach,” the lawsuit states.
Everglades Island, Lake Towers and Nightingale Trail/La Puerta Way have
buried their utilities, and property owners in those neighborhoods are
paying assessments tied to their projects, and they are not being assessed
as part of the town-wide project.
In the suit, PBT Real Estate argues that because their utilities and
distribution line are already underground, Palm Beach Towers owners should
be treated the same.