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In August of last year, four Coconut Grove residents sued the City of Miami because they were unable to afford the "affordable" homes in the Grove's new St. Hugh Oaks housing project. Last month they lost a crucial round in their fight, exposing them to a different sort of financial threat: the possibility that they might be liable for attorneys' fees.
In a December 14 ruling, Circuit Court Judge Gisela Cardonne denied the plaintiffs' petition to force the city to reconsider its $115,000 selling price for the 23 homes, located at the intersection of Douglas and Franklin roads. According to the judge, the residents' case wasn't substantial enough to argue in court. Cardonne has yet to decide a motion to require petitioners Robert A. Young, Millicent Bain, Parnice Brown, and Constance Gilbert to pay the city's legal fees.
"If we get hit with attorneys' fees, we will pay them," says Young, vowing that there will be an appeal of Cardonne's ruling. "The monthly mortgage on these houses exceeds the income level of people in the community. I think the city knows that but they don't care."
Before pursuing the matter further, however, the plaintiffs' attorney has some personal business to attend to.
On December 14, the same day Cardonne signed her decision, Metro-Dade Public Defender Bennett Brummer met with attorney Neil Shiver, who represented the plaintiffs in the case. According to Shiver, an assistant public defender in the juvenile division, Brummer gave him the choice of giving up the St. Hugh Oaks case or giving up his job. The reason: The Public Defender's Office does not allow its lawyers to pursue outside legal matters pertaining to other government entities.
Last week Shiver submitted a letter of resignation from the Public Defender's Office.
The case involves a 3.1-acre parcel of land the city bought in 1986 with the aim of building a 40-unit housing project for moderate-income families, including residents of the Black Grove. Inhabitants of the mostly white South Grove, which adjoins the tract, complained the anticipated prices of the homes ($65,000) would drive down their own property values. But in a series of revisions, Miami commissioners scaled down the number of planned units and raised the sale price to $115,000 per home.
On behalf of his clients, Neil Shiver alleged that commissioners were in violation of their own laws. In their analysis of the project's affordability, city officials had estimated that an annual income of $44,000 would qualify a buyer for a mortgage loan. This, they asserted, fell within a "moderate income" range. Shiver argued that the city's own Comprehensive Neighborhood Plan pegged moderate income to Dade County's median income, which is currently $35,700 per year for a family of four. With that income, a buyer could only qualify for a home priced at $90,000 or less, Shiver calculated. (His annual salary as an assistant public defender wouldn't qualify him for a home in St. Hugh Oaks.) The suit noted further that in purchasing the St. Hugh Oaks property with bond money, the city was required to supply housing for neighborhood residents who fit the community's economic profile.
All along city officials had claimed that escalating costs, including those created by Hurricane Andrew, had forced them to alter the project and raise prices. To this Shiver responded that the city itself had been the model of inefficiency: It paid too much for the land and undertook the development itself rather than following the normal practice of using an outside developer. (The suit was covered in more detail in "Building Block," a story in the October 6, 1994, issue of New Times.)
Shiver had hoped the city would settle out of court; he was willing to accept a selling price of $80,000 per home and a commitment to set aside eleven houses for blacks, six of those for community buyers.
City commissioners refused to compromise, though, and were so confident of victory that they began advertising the homes for sale, ignoring their own attorney's advice to hold off until the case had been decided. "Initially we said that it would be more prudent not to proceed," confirms Assistant City Attorney Linda Kearson, who says she warned commissioners that disclosing a pending lawsuit might discourage buyers. "But the commission elected to move forward with the caveat of full disclosure [of the suit to potential buyers]."
The city is now assembling a list of qualified buyers and has moved back the application deadline from December 24 to January 13, according to Jeff Hepburn, assistant director of the Department of Housing and Development Conservation. When all the applications are in, buyers will be selected randomly. "Just like the Florida lottery," Hepburn explains. "We will pull balls out of a machine, or something to that effect."
The city's schedule might be thrown off if the plaintiffs are successful in their appeal -- which brings up the topic of Neil Shiver's involvement, past and future.
A 36-year-old resident of the Black Grove who was admitted to the Florida Bar in February of last year, Shiver had been working on the case for three and a half months when Bennett Brummer informed him he was breaking a Public Defender's Office rule. "I was advised to leave the case because there is a policy against this," Shiver reports, adding that the two-hour closed-door session with Brummer included "a conversation about the public defender being a political office and there being political ramifications from being involved in [cases against government agencies]."
Reached for comment for this story, Brummer says his assistant PDs are permitted to take on "incidental or occasional private practice" but never a case involving another government organization. The longstanding policy goes for everyone in the office and is not being directed selectively at Shiver, the chief public defender explains. Brummer says Shiver initiated the meeting, and they didn't discuss the St. Hugh Oaks suit, only the rationale behind the policy. "If we depend on the City of Miami to cooperate to get office space or the police department for the protection of our personnel, I am not going to permit attorneys to casually and perhaps unknowingly influence those relationships," Brummer elaborates. "People could easily hold me or the office responsible for what the lawyers are doing individually." At the time of the meeting, Shiver indicated he would continue with his job and find another attorney for the case, Brummer says. "But I am not sure now what he is going to decide now."
Shiver, who had planned to follow up his current suit with a federal discrimination suit alleging that the Black Grove is a segregated community, says that right now he's wondering whether it will be possible for him to hang on to his job without letting down his clients. He says he'll withdraw his resignation from the Public Defender's Office if he can find a more experienced attorney "who can deliver the bacon" on an appeal: "The advice I am getting from other lawyers is that this is a way straight to bankruptcy -- fighting city government and taking cases from people who can't pay attorney's fees.