HomeMy WebLinkAboutO-10846J-90-567
09/25/90
ORDINANCE NO. 10 8 4 6a
AN ORDINANCE AMENDING THE ZONING ATLAS OF
ORDINANCE NO. 11000, THE ZONING ORDINANCE OF
THE CITY OF MIAMI, FLORIDA, AS AMENDED,
PURSUANT TO COURT ORDER, BY CHANGING THE
ZONING CLASSIFICATION FOR PROPERTY LOCATED AT
APPROXIMATELY 3260 SOUTHWEST 8TH STREET,
MIAMI, FLORIDA (MORE PARTICULARLY DESCRIBED
HEREIN), FROM G/I GOVERNMENT AND
INSTITUTIONAL TO C-1 RESTRICTED COMMERCIAL;
BY MAKING ALL NECESSARY CHANGES ON PAGE
NUMBER 40 OF SAID ZONING ATLAS; CONTAINING A
REPEALER PROVISION AND SEVERABILITY CLAUSE;
AND PROVIDING AN EFFECTIVE DATE.
WHEREAS, this change of use was requested by WOODLAWN PARK
CEMETERY COMPANY ("Applicant") and was recommended for approval
by the Planning Department in 1985; and
WHEREAS, on November 26, 1985, the City Commission denied
the requested change of zoning by Resolution No. 85-1177; and
WHEREAS, as a consequence of the City Commission's action,
the Applicant filed an appeal with the Circuit Court; and
WHEREAS, the Circuit Court of the llth Judicial Circuit, on
September 15, 1986 ruled in favor of Applicant; with said
decision being affirmed by the 3rd District Court of Appeal with
further review being denied by the Florida Supreme Court; and
WHEREAS, the Circuit Court's Order quashed Resolution No.
85-1177, enjoined the City "from enacting, maintaining or
enforcing any zoning classification on the subject parcel more
restrictive than CR-2/4," and directed the City to amend its
Zoning Atlas in conformance with the Order; and
WHEREAS, this land use change is in response to and in
compliance with the above mentioned Order of the Circuit Court;
and
WHEREAS, the Miami Planning Advisory Board at its meeting of
June 6, 1990, Item No. 4b, following an advertised public
hearing, adopted Resolution No. PAB 36-90, by a 9 to 0 vote,
{ RECOMMENDING APPROVAL of the request to amend the Zoning Atlas as
hereinafter set forth; and
WHEREAS, the City Commission, after careful consideration of
this matter, deems it advisable and in the best interest of the
general welfare of the City of Miami and its inhabitants to amend
the Zoning Atlas as hereinafter set forth;
NOW, THEREFORE, BE IT ORDAINED BY THE COMMISSION OF THE CITY
OF MIAMI, FLORIDA:
Section 1. Pursuant to an order of the Circuit Court of the
11th Judicial Circuit (September 15, 1986; Case No. 85-53132
(Ca18), affirmed on appeal by the Third District Court of Appeal
August 11 1989; Case No. 86-2376, and denied review by the
Supreme Court of the State of Florida April 16, 1990; Case No.
75,325], the Zoning Atlas of Ordinance No. 11000, the Zoning
Ordinance of the City of Miami, Florida, is hereby amended by
changing the zoning classification, from G/I Government and
Institutional to C-1 Restricted Commercial, for property located
at approximately 3260 S.W. 8th Street, Miami, Florida, more
particularly described as a quadrangular parcel of land 1.382
acres in size, fronting on S.W. 8th Street, measured commencing
at a point of beginning on the south r.o.w. line of SW 8th
Street, which is 358.37 feet west of the west r.o.w. line of SW
32nd Avenue, then run west 228.68 feet on the south side of SW
8th Street, then south perpendicular 263.00 feet, then east and
parallel to SW 8th Street a distance of 229.23 feet then N007111"
W. 263.00 feet to the point of beginning, being a portion of
WOODLAWN PARK CEMETERY, according to the plat thereof, as
recorded in Plat Book 31 at Page 56 of the Public Records of Dade
County, Florida; also being a portion of WOODLAWN PARK CEMETERY,
Section 3A, according to the plat thereof, as recorded in Plat
Book 44 at Page 82 of the Public Records of Dade County, Florida;
said tract of land lying within BOUNDARIES OF WOODLAWN PARK
CEMETERY, according to the plat thereof, as recorded in Plat Book
44 at Page 70 of the Public Records of Dade County, Florida
(Complete legal description on file with the Hearing Boards
Office, Planning, Building and Zoning Department).
Section 2. Page No. 40 of the Zoning Atlas, made a part of
Ordinance No. 11000 by reference and description in Article 3,
Section 300 thereof, is hereby amended to reflect the changes
made necessary by this amendment.
-2- 1084 6
Section 3. All ordinances or parts of ordinances insofar as
they are inconsistent or in conflict with the provisions of this
Ordinance are hereby repealed.
Section 4. If any section, part of this section, paragraph,
clause, phrase or word of this Ordinance is declared invalid, the
remaining provisions of this Ordinance shall not be affected.
Section 5. This Ordinance shall become effective forty-five
(45) days after final reading and adoption thereof.
PASSED ON FIRST READING BY TITLE ONLY this 26th day of
July , 1990.
PASSED AND ADOPTED ON SECOND AND FINAL READING BY TITLE ONLY
this 28th day of February XXAVIER�,L:!._
11.
UAREZ, MAYOR
J:ATTERAI, CITY CLERK
PREPARED AND APPROVED BY:
JOEL Erl MAXWELL
CHI 51SSISTANT CI Y ATTORNEY
APPROVED AS TO FORM AND
JEM/db/M656
-3-
-y,
PLANNING FACT SHEET
APPLICANT City of Miami Planning Department:
May 16, 1990
PETITION 4b. APPROXIMATELY 3250_S.W. 8TH STREET
A 1.3 acre tract of land fronting on
S.W. 8th Street being a portion of
WOODLAWN PARK CEM (31-56) PRDC.
Also, being a portion of
WOODLAWN PARK CEM Section 3A (44-82) PRDC.
Said tract of land lying within
BOUNDARIES OF WOODLAWN PARK CEMETERY (44-
70) PRDC
(Complete legal description on file with
Hearing Boards office, Planning, Building
and Zoning Department.)
Consideration of a change of zoning
classification in the Official Zoning Atlas of
Ordinance 11000, as amended, the new Zoning
Ordinance of the City of Miami, to become
effective September 4, 1990, for the subject
property from G/I GOVERNMENT AND INSTITUTIONAL
to C-1 RESTRICTED COMMERCIAL.
(Note: This is a court -ordered rezoning,
ordered by the Circuit Court of the 11th
Judicial Circuit; confirmed by the Appellate
Court and the Florida Supreme Court).
REQUEST To rezone a 1.3 acre site at Woodlawn Park
Cemetery from G/I Government and Institutional
to C-1 Restricted Commercial.
RECOMMENDATION
PLANNING DEPARTMENT Approval.
BACKGROUND This change of zoning use requested by Woodlawn
Park Cemetery Company and was recommended for
approval by the Planning Department in 1985.
On July 1, 1985, by Resolution ZB-84-85 the
Zoning Board deferred the item; by .Resolution
ZB-116-85, September 9, 1985 the Zoning Board
recommended denial.
10846
On September 26, 1985 the Commission continued
consideration to November 26, 1985. On November
26, 1985 the Commission denied the proposed
change of zoning by Motion 85-1177.
The applicant, subsequently filed an appeal to
the Commission's decision. The Circuit Court of
the 11th Judicial Circuit found in favor of the
applicant and this decision was affirmed by the
Appellate Court and Florida Supreme Court.
(See opinion attached).
ANALYSIS The requested change would not be inconsistent
with the existing land uses in the area.
Commercial development exists to the north, east
and west of the subject property and is zoned
C-1. Therefore, there would' be no adverse
impact. The change of zoning is being requested
to allow the construction of a funeral home and
additional office space to be used for cemetery
purposes only. A funeral home is a logical use
that would be compatible with the existing
cemetery use. The granting of this change would
not result in a precedent as the subject
property is located within the confines of the
existing cemetery and the proposed development
does not expand the boundaries of the cemetery.
(See zoning analysis attached).
PLANNING ADVISORY BOARD At its meeting of June 6, 1990, the
Planning Advisory Board adopted
Resolution PAB 36-90 by a 9-0 vote,
recommending approval of the above.
Seventeen replies AGAINST and five
replies in FAVOR were rece vied by mail.
Eight OPPONENTS and two PROPONENTS were present
at the meeting.
CITY COMMISSION At its meeting of July 26, 1990, the City
Commission passed the above on First Read-
ing.
10846
a
i
hum
d� d� .c'E or
h ai NMI
�•� 11
Irv
-
ai r --NMI
`c ■e■■ ..' �U�1�I�II�NIi1■�■■■.
■ioil
�����•■� �r� �rrr�r�r;irlli•Irtlrl•rr
Jm
RQF
" ..
H
�r
m
fl
zm
mm—
�, •,
• 7
•
229.23'
i
'
armIr
I
, ,
WOODLAWN PARK
r
11
•
w
+
r
r r
•
w
• .
9
RR.
OQ,
n!•trO
,
•
r,
Ti '1•
r N
•
� � •
"'+
-
T■ •r
►-
CEMETERY
IS
i •
S
�
i
r.
r
ww•
NEW
rA
t.■•'!' aNtwen
I q �1 a ' • / + N
. 13 < 4Z I 1 • „ 2
' "' ' " • - WOODLAWN PARK ,w
r la it t • • • 2 • • 1•r j • N r "winw r.
w
a !
13 tERR. 7
• • • 1 1 a t • • 1 a • • • T• •
• 1 ■rah •� ,1 r r 1 � � S
11■ la •••a• / ••Nrrt :•
• +• N t a a• s al • M�
1•u' q nNNr
M r I •• w s,w
CEMETERY •g awrr ww
� 14 'ST. j = 1 a • •
' ti • • r .
M N r • •
• 11 1 ! • • 1 • • 16• l•• _
/ w yl tJM M •/•q qq rq
ORAL GAT e • • ' • N N /1 !1 !• 1• . In
r• r r w M PARK
wPARK •• « r.
s Is W.
r •T w
1 t • • • • f • • 1• 11 •
«a as al 9NIq q ••
r N N
PR
A
C-10,11H.W11.
i
L o
4,
o
f TII
I,TT p r w w '• '
•
Ordinance 11000
....« 39 Zoning Change A.
a@ L. Gs A
o
•
w
• � S.W. 6 Approx: 3260
•' "• - w• °• •• Y
SW 8th Street
� • • 1• r • 1! +� t• al !. N N h 1• N r la, Y •• •• _ ••
S.W. is TERR. � Fr
m: G-i
rK r ti • . a "man
• / t Br « 1• 1• 11
�• � t i r � !. •r 1• r LAM • 11 loll + • . • 1 . PE1B 6/6/90
/ � _ ~ /D •/ . .• « .. a to Tt 1 .. ,
9 •�' Na w q qr' is al ■
1 � ■ « •• ri •• . r
,. r •• t 7 ST. ri 1• t= .W.
� f ��-. �- S.R • w N •• IN w
r � r •' •1 •.� . r r • • • • • f t
10846
3
t.■•'!' aNtwen
I q �1 a ' • / + N
. 13 < 4Z I 1 • „ 2
' "' ' " • - WOODLAWN PARK ,w
r la it t • • • 2 • • 1•r j • N r "winw r.
w
a !
13 tERR. 7
• • • 1 1 a t • • 1 a • • • T• •
• 1 ■rah •� ,1 r r 1 � � S
11■ la •••a• / ••Nrrt :•
• +• N t a a• s al • M�
1•u' q nNNr
M r I •• w s,w
CEMETERY •g awrr ww
� 14 'ST. j = 1 a • •
' ti • • r .
M N r • •
• 11 1 ! • • 1 • • 16• l•• _
/ w yl tJM M •/•q qq rq
ORAL GAT e • • ' • N N /1 !1 !• 1• . In
r• r r w M PARK
wPARK •• « r.
s Is W.
r •T w
1 t • • • • f • • 1• 11 •
«a as al 9NIq q ••
r N N
PR
A
C-10,11H.W11.
i
L o
4,
o
f TII
I,TT p r w w '• '
•
Ordinance 11000
....« 39 Zoning Change A.
a@ L. Gs A
o
•
w
• � S.W. 6 Approx: 3260
•' "• - w• °• •• Y
SW 8th Street
� • • 1• r • 1! +� t• al !. N N h 1• N r la, Y •• •• _ ••
S.W. is TERR. � Fr
m: G-i
rK r ti • . a "man
• / t Br « 1• 1• 11
�• � t i r � !. •r 1• r LAM • 11 loll + • . • 1 . PE1B 6/6/90
/ � _ ~ /D •/ . .• « .. a to Tt 1 .. ,
9 •�' Na w q qr' is al ■
1 � ■ « •• ri •• . r
,. r •• t 7 ST. ri 1• t= .W.
� f ��-. �- S.R • w N •• IN w
r � r •' •1 •.� . r r • • • • • f t
10846
3
r •T w
1 t • • • • f • • 1• 11 •
«a as al 9NIq q ••
r N N
PR
A
C-10,11H.W11.
i
L o
4,
o
f TII
I,TT p r w w '• '
•
Ordinance 11000
....« 39 Zoning Change A.
a@ L. Gs A
o
•
w
• � S.W. 6 Approx: 3260
•' "• - w• °• •• Y
SW 8th Street
� • • 1• r • 1! +� t• al !. N N h 1• N r la, Y •• •• _ ••
S.W. is TERR. � Fr
m: G-i
rK r ti • . a "man
• / t Br « 1• 1• 11
�• � t i r � !. •r 1• r LAM • 11 loll + • . • 1 . PE1B 6/6/90
/ � _ ~ /D •/ . .• « .. a to Tt 1 .. ,
9 •�' Na w q qr' is al ■
1 � ■ « •• ri •• . r
,. r •• t 7 ST. ri 1• t= .W.
� f ��-. �- S.R • w N •• IN w
r � r •' •1 •.� . r r • • • • • f t
10846
3
i
L o
4,
o
f TII
I,TT p r w w '• '
•
Ordinance 11000
....« 39 Zoning Change A.
a@ L. Gs A
o
•
w
• � S.W. 6 Approx: 3260
•' "• - w• °• •• Y
SW 8th Street
� • • 1• r • 1! +� t• al !. N N h 1• N r la, Y •• •• _ ••
S.W. is TERR. � Fr
m: G-i
rK r ti • . a "man
• / t Br « 1• 1• 11
�• � t i r � !. •r 1• r LAM • 11 loll + • . • 1 . PE1B 6/6/90
/ � _ ~ /D •/ . .• « .. a to Tt 1 .. ,
9 •�' Na w q qr' is al ■
1 � ■ « •• ri •• . r
,. r •• t 7 ST. ri 1• t= .W.
� f ��-. �- S.R • w N •• IN w
r � r •' •1 •.� . r r • • • • • f t
10846
3
3
9• - l l � � _ 0= � i .��" Off- � �a. , Y.� rI -'r
4.
Pilo
t ��d-•tt.-- ..,�.�Q� �•''w �r.4'� �i"�.''.�,.;,-1.�, `��?•�fG��� +IIw► *. 1+ �r �:.
!`�J�+"•.�T�.'f?f'
' T 4
' 4• �L s
'' ° �, • : �:/�. r�; �,,, is , 1 �.;' •�' .;�. � s
It
• � i ,. y�i• �>. ^n -5t,t `N h Ste,.. � '. '4 :, � !. •r
1; 1'�����J. � � �.1 �Fr�� • •+4'2 b ly;r,y'��:1�.1 fir. f !w•;}� �� �'
��'.:.� - , � • "'may ' �••��i •� 'fie; ' -� ;� r i
OR
i t
:illAFN
1 •t�LY.'• G�,,:�•+ i.. •t '1 +��a/ t �hgfy.�. .,�`� ,;.',�_�`r' V ,•� rJ� .. _ . 1• �.:'
irr
it
K f"�. f ~��� ; ���:_� � �•��. `^ter' �,�..: " •� 'i :�
V • �� • •\ � � � •mil � `••'y'•�. �ti•-` A � � + �
• F -f rJ din �5•..�.,r;!.1: T1.'.�.s _. j` •�. - ..
11000
v � •' ir
�ti�j ry` :. : -r.{•�+�ry,��i q 'v 'w .� :� = k .�+r5 •;`� �• - .
1 � i
Z-J
�!�-� �• � r -�'� y - r+ - +" d. �: 1 ��- t'r _ Yet' •r ...•I�� R
I
CW
.:i'. Y S, ajr. •iMMM�`.�i �, +.. ♦ '�'!.hS. n.�t,',,1•YJI� 'MA i,],• - 1 K 4 .t.L{I,� _ .
.'-i�'4 P�,t 1 r�� .. .. _ ]•�:1:,.1/•c..:.�i1..�„j♦ „ .., ,ar 5::.. ,Y4:•'r' -.��
- a •PAB • • ! 1
all
irk
T ra
'ate --- — - - -• --r - -
YS3
I'iQ �18
X
X
X
X
X
X
X
X
X
X
X
X
X
ANALYSIS
The proposed change -is in harmony with the
adopted Miami Comprehensive Neighborhood
Plan 1989-2000, and does not require a plan
amendment.
The proposed change is in harmony with the
established land use pattern.
The proposed change is related to adjacent and
nearby districts.
The change suggested is within scale with the
needs of the neighborhood or the City.
The proposed change maintains the same or similar
population density pattern and thereby the load on
public facilities such as schools, utilities,
streets, etc. is the same.
Existing district boundaries are illogically drawn
in relation to existing conditions on the property
proposed for change.
There are changes or changing conditions that
make the passage of the proposed change
necessary.
The proposed change positively influences living
conditions in the neighborhood.
The proposed change has the same or similar
impact on traffic and does not affect
public safety as the existing classification.
The proposed change has the same or similar
impact on drainage as the existing
classification.
The proposed change has the same or similar
impact on light and air to adjacent areas as the
existing classification.
The proposed change has the same or similar impact.
on property values in the adjacent areas as the
existing classification.
The proposed change will contribute to the
improvement or development of adjacent property in
accord with existing regulations.
108464
1 H4 H8
X The proposed change conveys the same treatment to
the individual owner. as to the owner within the
same classification and the Imm diate area; and
furthers the protection of the public welfare.
X There are substantial reasons why the use of the
property is unfairly limited under existing
zoning.
X It is difficult to find other adequate sites in
the surrounding area for the proposed use in
districts already permitting such use.
EXHIBIT �'A"
ll�il®O®LA1�iNN PARK CEV E MRY
IIAL DESCRIPTION
ract of land bring a portion of WOODLAWN PAPK CEMETERY according to the:
t thereof recorded in Plat Boot 31 at Page 56 Of the PLblic Reccrds of
!e County, Florida, also being a portion of WOODLAWN PARK CEMETERY - SECT-
3A,-eccording to the Plat thereof recorded In Plat BOOk 44 at Page 82 of
Public Records of Dade County Florida: said tract of land lying W thin
)UNDAR1ES Or WOODLAWN PARK CEMETERY",,according to the Plat thereof re-
-ded in Plat Book 44 of Page 70 of the Public Records of Dade County.
:rida, and being more particularly described os folice4s:
vnence at the Northeast corner of the Nortawest onc•quar( r (Nwl)tof
.t i on 9. Townchl p 54 South, Pangc 41 f •st. Oade ounty ,
hence
WEST along Oe North boundary of the No;Dade
one-querter (4W;,) of sold
:tion 9, a distance of 383.37 'e+:t to the point 01 intersection with a
le %o drawn as to pass throuy" Ulm. t.,I euistinq Pufmarent Reference monu-
Its on t+je We%t boundary of Section known a: Sect iun 11 Of WOODLAWN PARK
yE T IRY i th�nt;e run Sou th 00402' 39°` East along the last described line a
stance of 50 00 feet to the pc+
f Southwest 8th Street
of intersection with the South Right-
aa� boundary oet as shown an %aid Plat entitled
the
OUNDARIES or WOOOLAWN PARK CEMETERY° , said point or intersection be'thencc
i.nt of Beginning of the Parcel oLand
belnhereinafter
along :a�ddeineiso drawn
nt i nue of. the last described course9
to ppss through said two (2) existing Permanent Rye' erence, monuments
PORK on
e Nett boundary of said Section kne-An a. Section 12 a:
WnODLAWNCFM-
ERr , a di -:tame Of 263.00 feet to a point: thence run WEST along r l Inc
• t 8t h Street a
era l l e 1 to the SOLIth R 19"t •of •Wa boundary r said you t1i a 1 i ne so drawn
s tanca of 229.21 feet to %tie pe+i nt o6 i ntersec t i e-r
. to a®a through two (2) existing Rs�erence MOnumI.-Pl % on the Least hence
•y of Section known as Section 30 of ,aid WOOOI.IWti ' ��� (I.Mi.TrRY: thence
,�+ Nort11 00'04'30'' East along the last described 1 I-. • a di stance of 263•�
!et to the point Of intersection t•oi th the South A,,,dt-Cf-WecR ibht�-af-Wayddry Of
lid Southa;est eth Street: thence r.in I.AST &Jong 4
)uthwest eth Street a distance of 228*68 feet tc% ttce Point .of Seginninq,
2nLa i n i ng 60.215 square feet, more or less, or 1.3d2 Acres, score or less.
.L
Or THE FOREGOING SUBJECT TO any dedications, limitations, restrictions,
eservations or easements of record.
CITY OF MIAMI. FLORIDA
INTER -OFFICE MEMORANDUM
To: Honorable Mayor and Members
of the City Commission
r
CROM : • 7 e', F rnandez
City At to>yney
01459
DATE - Maxtjftf.rQ 192.9
M
: G-85-170
SUUECT . City Commission of the Cit
of M am1 v. Wood awn Par
Cemetery Company
REFERENCES,
Please be advised that the Supreme Court of Florida denied
the City's . petition (o invoke jurisdiction to review the opinion
rendered by the Third District Court of Appeal in the above
captioned case. As I previously stated to you in .my memorandum
dated January 30, 1989, I felt that the Court may not agree to
review the case on the merits because of its very broad
discretion in limiting the cases which it reviews.
As you will recall, the City petitioned the Third District
Court of Appeal to issue a writ of certiorari after the Appellate
Division of the Circuit Court overturned the City Commission's
denial of a rezoning request for a parcel of the Woodlawn Park
Cemetery. The Third District Court of Appeal refused to issue
the writ, finding that the City Commission's denial constituted
impermissible reverse spot zoning. '
This Office will advise the Planning, Building and Zoning
Department of the Court's action and the need to schedule the
appropriate hearings necessary to rezone the subject parcel in
accordance with the opinions rendered by the appellate courts.
Do feel free to contact me should you have any questions
regarding this matter.
JLF/JEM/P/db/M150
cc: Cesar H. Odio, City Manager
Sergio Rodriguez, Director, Planning, Building and Zoning
Department .
10846
fl.
WOODLAWN PARK CEMETERY
COMPANY,
Petitioner,
VS.
CITY. COMMISSION OF THE CITY
OF MIAMI, et al.,
Respondent.
IN THE CIRCUIT COURT OF THE 11TH
JUDICIAL CIRCUIT IN AND FOR DADE
COUNTY, FLORIDA
GENERAL JURISDICTION DIVISION
Case Number 85-5311.2 CA-18
rA
WRIT OF CE'RTICRARI
THIS MATTER came before the Court on Petitioner Woodlawn
Park Cemetery Company's ("•Aoodlawn's") Petition for Writ of
Certiorari. Through its petition, Woodlawn has. brought before
this Court for review=/the decision of Respondent City Commission
of the Cit7 of Miami denying Woodlawn's pplication to rezone a
1.3 acre parcel of land ("the subject parcel") located at the
Southwest Eighth Street entrance to Woodlawn's 68 -acre cemetery.
The application sought rezoning of the subject parcel from its
present RS-2/2 "existing cemetery", a residential classification,
to CR-2/4, a commercial classification. The subject parcel is
now the site of a building containing business and sales offices
for the cemetery. Woodlawn has stated that it intends to
construct and operate a funeral home which would incorporate the
existing cffice building on the parcel if rezoning is obtained.
The present zoning does not permit that use.
The Court has reviewed the petition, the responses filed by
Respondent City Commission of the City of Miami ("the City") and
respondent "Intervenors", Woodlawn's replies thereto and those
1/ The petition is before the court pursuant to Art. V, S5(b),
Fla. Const., Rules 9.030(c) and 9.100, F1a.R.App.P. and City
of Miami, Fla., Zoning Ordinance S3205 (1985).
108468
�1
portions of the record contained in the parties' appendices filed
pursuant to Rules 9.100 and 9.220, Florida Rules of Appellate
Procedure. The Court also heard the oral argument of counsel on
September 2, 1986. on the basis of this record, the Court holds
that the City, in denying Woodlawn's rezoning application, abused
its discretion by arbitrarily'and capriciously denying Woodlawn
its constitutionally guaranteed right to make a reasonable use of
its property in accord with the charRcter of the adjacent
neighborhood.
The 1.3 acre subject parcel for which rezoning was sought is
located at the northern edge of Woodlawn's 68 acres and is
situated approximately in the middle of the cemetery's 900 foot
northern frontage on Southwest Eighth Street. Southwest Eighth
Street is a ausy four -lane street and every property in the City
of Miami with frontage on Eighth Street is zoned for commercial
use with the sole exception of Woodlawn's property. Directly to
the north across Eighth Street from the subject parcel as well as
to the east and west of Woodlawn's Eighth Street frontage, all
v
other property is zoned CG-1/7, a higher -density, more permissive
commercial classification than the CR-2/4 zoning sought by
Woodlawn's application. .
All of this other nearby land fronting on Eighth Street is
used for commercial purposes, including restaurants, a tire
store, used car lots, an automobile rental agency, a gas station
and other similar businesses. The nearest residences to the
subject parcel are located behind and to the south of these
existing Eighth Street commercial properties and they are and
will be buffered from the subject parcel by the rest of the 68
acre cemetery. This cemetery buffer separates the subject parcel
from the nearest residences to the east by a distance of over 385
feet and the nearest residences to the west are more than 285
feet away. The nearest residences to the south are separated
from the subject parcel by more than eight blocks of cemetery
property.
-2-
10846
'An existing funeral home, the Rivero Funeral Home, is.
located and operates on the same side of Southwest Eighth Street
and on the same block as the subject parcel. A total of eight
funeral homes overate within a 30 block radius of Woodlawn. Of
these, three are located on Southwest Eighth Street.
The City's power to enact zoning restrictions is subject to
the constitutional limitations announced by the Supreme Court of
Florida in BlIrritt v. Harris. 172 So.2d 820 (Fla. 1965):
The constitutional right of the owner of
properly to make legitimate use of his
lands may not be curtailed by
unreasonable restrictions under the
guise of police power. The owner will
not be required to sacrifice his right
absent a substantial need for
restrictions in the interest of public
health, morals, safety or welfare. if
the zoning restriction exceeds the
bounds of necessity for the public
welfare, as. in our opinion, do the
restrictions controverted here, they
must be stricken as an unconstitutional
invasion of property rights.
172 So.2d at 823 (emphasis added).
If it is "farrly debatable" that there is a substantial need
for the zoning restriction, then the restriction will be
sustained as a reasonable exercise.of the police power. But the
debate must be on grounds that "make sense":
An ordinance may be said to be fairly
debatable when for any reason it is open
to dispute or controversy on grounds
that make sense or point to a logical
deduction that in no way involves its
constitutional validity.
City of Miami Beach v. Lachman, 71 So.2d 148, 152 (Fla. 1953)(en
banc), appeal !ismissed, 348 U.S. 906 (1955) (emphasis added).
Thus, where it is shown that zoning ordinancEa and regulations
deprive one of his property witho»t due
process or otherwise infringe on State
or Federal constitutional guarantees
unreasonably, such ordinances and
regulations cannot to said to be
reasonabiv debatable and will be
stricxen down.
71 So.2d at 150 (emphasis added).
-3-
10846
0
Zoning restrictions that deny an owner of private property
having restricted zoning the same more liberal zoning
classification enjoyed by owners of adjacent land constitute an
arbitrary and capricious invasion of private property rights and
are considered "reverse spot zoning.". Tollius v. City of Miami,
96 So.2d 122 (Fla. 1957)(single-family classification stricken as
reverse spot zoning where parcel located on block situated across
busy city streets from commercial development); Ci:7of Coral
Gables v. weoman, 418 So.2d 339, 340-41, n.7 (Fla. 3d DCA),
Pet-
denied,424 So.2d 760 (1982) (ordinance restricting height and
density of property stricken as reverse spot zoning as to parcel -
almost surrounded by buildings of greater height and density);
Dade County v. Beauchamp, 348 So.2d at 53, 55 (Fla. 3d DCA 1977),
cert. denied, 335 So.2d 512 (Fla. 1978) (it did not "make sense"
for county to impose height and density limitations on a parcel
more restrictive than those permitted on surrounding property);
City of Miami v. Schutte, 262 So.2d 14 (Fla. 3d DCA 1972)(reverse
spot zoning to deny zoning for multi -family development in order
to limit building height near airport when adjacent land already
zoned and developed for that purpose); Matnilow v. City of Miami
Beach, 213 So.2d 589, 593 (Fla. 3d DCA 1968), cert. denied, 226
So.2d 805 (Fla. 1969), cert. denied, 397 U.S. 972 (1970) and
Kugel v. City of. Miami Beach, 206 So.2d 282, 284-85 (Fla. 3d
DCA), cert. denied, 212 So.2d 877 (Fla. 1968), cert. denied, 393
U.S. 1021 (1969) (neighborhood's transition from- residential to
commercial rendered residential classification reverse soot
zoning); Olive v. City of Jacksonville, 328 So.2d 854, 856 (Fla.
lst DCA 1976)(it was spot zoning in reverse to deny rezoning
where new classification sought was even more restrictivc and
less intensive than that enjoyed by surrounding properties); City
of Clearwater v. College Properties Inc., 239 So.2d 515, 517-18
(Fla. 2d OCA 1970)(restriction of property surrounded by general
commercial uses to more restrictive "professional" classification
was reverse spot zoning).
-4-
10846
The record compels this Court to conclude that petition has
carried its burden of establishing that the City's refusal to
rezone the parcel to a commercial zoning classification
constitutes reverse spot zoning and deprives Woodlawn of its
constitutionally protected right to make a reasonable use of its
property. Southwest eighth Street is a busy commercial
thoroughfare, and all land fronting on Eighth Street is zoned for
commercial use throughout the City of Miami with the sole
exception of Woodlawn cemetery's 900 foot northern border. The
subject parcel itself faces this thoroughfare containing the many
businesses situated across the street as well as directly to the
east and west of the cemetery. A funeral home already, operates
on the same side of the street and on the same block as the
subject parcel. The City, having permitted commercial development
to dominate the area, may no longer restrict an adjacent parcel
to a residential zoning classification in order to "preserve" a
residential environment that does not exist.
The City and intervenors argue that this Court must sustain
the restriction as a "fairly debatable" exercise of the police
power. They argue• that the debatable nature of the decision is
established by the fact that -the City's planning department
recommended the requested rezoning, but the city commission voted
to deny rezoning. They also rely upon the opposition from the
owners of the other area funeral homes, as well as some persons
living in residential areas to conclude that the decision must be
fairly debatable.
The fact that all other properties fronting on Southwest
Eighth Street are already zoned for commercial use is not in
dispute. The city planning department found that the requested
rezoning would be compatible with the area's existing commercial
character and recommended the requested rezoning on that basis.
Further, Woodlawn presented the city commission with expert
opinions in the form of professional traffic and noise studies
which concluded on the basis of actual traffic counts, decibel
-5-
]L084¢�
readings and other scientifically collected data that the
rezoning would have or no perceptible impact on the area's
traffic and noise environment. These studies and the planning
department's recommendation support the conclusion that the
character of the affected area is already heavily commercial,and
that the rezoning of the subject parcel will have no different
impact than the existing commercial properties.
The mere presentation of opposing viewpoints does not
render the decision fairly -debatable, as the debate must be on
grounds that make sense. It is conceded that Southwest Eighth
Street is already heavily commercial in nature and no evidence -
was offered to show that the requested rezoning would•.contribute
any greater or different kind of noise or traffic than the
existing businesses and funeral homes on Eighth Street, including
the existing funeral home on the same block. The testimony relied
on by the City and Intervenors, even if it is accepted as
authoritative and reliable, establishes only that Woodlawn will
contribute incrementally :o :he commercial activity that already
exists in this commercial area. A zoning authority may not deny
rezoning on traffic and related grounds when its zoning scheme
already permits other area rand owners to make comparable
contributions to the area's traffic environment through
commercial use of the land. City of Clearwater v. College
Properties Inc., supra at 517.
Further, existing cemetery property buffers the parcel from
the nearest homes by more than 285 feet to the west, more than
385 feet to the east and more than 8 city blocks to the south. By
contrast, other commercially zoned parcels along this stretch of
Southwest Eighth Street, including the nearby Rivero Funeral
Home, are physically adjacent to area residences. The presence
of this buffer further supports the conclusion that the City's
action was arbitrary and capricious and that the restriction
constitutes reverse spot zoning. See City of Miami v. Grabel,
339 So.2d 259, 260 (Fla. 3d DCA 1976).
-6-
10846�3
JY�
1
While a reviewing Court is,not entitled to substitute its
judgment for that of the zoning authority, a zoning restriction
must be set aside when it deprives a property owner of his
constitutional right to use his property. On the record before
this Court it is clear that the parcel faces a busy commercial
thoroughfare already bristling with commercial activity. While
the City may enact zoning restrictions to'create and preserve
residential zones free from commercial activity, it may not
constitutionally refuse to permit a commercial use of land in an
area permeated by commercial activity. The instant zoning
restriction constitutes reverse spot zoning. Therefore, it is
ORDERED, that the Petition for Writ of Certiorari is
GRANTED. The City's decision denying Woodlawn's rezoning
application is quashed and the City is enjoined from enacting,
maintaining or enforcing any zoning classification on the subject
parcel more restrictive than CR-2/4. The City is further ordered
to.amend its zoning atlas in conformance with this Order.,
Copies Furnished To:
Counsel of Record
-7-
0DOE R. H. NEWMAN
CIRCUIT COURT JUDGE
?// ,S' p6
10846
10
MIAMI REVIEW
Published Dally except Saturday, Sunday and
Legal Holidays
Miami, Dade County, Florida.
STATE OF FLORIDA
COUNTY OF DADE:
Before the undersigned authority personally appeared
Sookle Williams, who on 6alh says that she Is the Vice
President of Legal Advertising of the Miami Review, a daily
(except Saturday, Sunday and Legal Holidays) newspaper,
published at Miami in Dade County, Florida; that the attached
copy of advertisement, being a Legal Advertisement of Notice
In the matter o1
CITY OF MLOn
Ordinance No. 10846
Inthe ... ?{. ?{. X.... . ......................... Court,
was published In said newspaper In the Issues of
March 20, 1991
Afllant further says that the said Miami Review Is a
newspaper published at Miami In said Dade County, Florida,
and that the said newspaper has heretofore been continuously
gublishod In said Dade County, Florida, each day (except
Saturday, Sunday and Legal Holidays) and has been entered as
second class mail matter at the post office In Miami In said
ltuheuflr
ty, Florida, for a period of one year next preceding
pu lication of the attached copy of advertisement; andrt er says that she has neither paid nor promised any
or corporation any discount, rebate, commission
for the purpose of securing this advertisement for
n in t said newspaper.
Swom tq• " ibed before me this
f c + 91
D.19.. ....
(SEAL)4.
OF Fl ••
"OFFICIAL NOTARY SEAL"
OCTELMA V. FERBEYRE
MY COMM. EXP. 7/9/94
0
TO THE HONORABLE J.L. PLbM�M 4 iiC1 � DAtE
VJ^ Mayor cm 0-0`i1i�
(&(' l-f or �41A `Jj, FI.AsUBJECT
i
March 1, 1991 FILE:
Memorandumof Voting
Conflict
FROM : ATTY H IRA I REFERENCES:
City Clerk
ENCLOSURES:
At the Commission meeting of February 28, 1991, you abstained
from voting on item PZ-3 and PZ-4, namely:
"Changing the land use designation of approximately
3260 S.W. 8 Street from Major Public Facilities,
Transportation and utilities to Restricted
Commercial."
and
"Zoning atlas change at approximately 3260 S.W. 8
Street from G/I Government and Institutional to C-1
Restricted Commercial."
Kindly fill out parts (a) and (b) in the back of said forms (one
FORM 8g (MEMORANDUM OV VOT O ONFtIOT FOR H �;
OOUNTYa MUN101PA`m AND OTHER .LOOAL PURIO OFFIOERS
LIW*s
r, J.L., Jr.
3500 Pan American Drive
raunm
Miami Dade
WHICH VDIA CXXVRRED
February 28, 1991
*10CH 1 WIVE o A UN" of:
X Cl IV :I tTRMV t OTHER IDCAI Act"CV
MY
WHO MUST Fi1LE POW r8
' aLMIVE AMlOINTIVE
This form is for use by any person serving at the county, city. or other local level of government on an appointed or elected board,
council, commission, authority, or committee. it applies equally to members of advisory and non -advisory bodies who are presented
with a voting conflict of interest udder Section 112.3143, Florida Statutes. The requirements of this law• are mandatory, although
the use of this particular form is not required by law. you an encouraged to use it in making the disclosure required by law.
Your responsibilities under the Vw when faced with a measure in which you have a conflict of interest will vary greatly depending
on whether you hold an elective or appointive position. For this reason, please pay close attention to the instructions on this form
before completing the merle tide and tiling the form.
INSTRUCTIONS FOR COMPLIANCE WITH SECTION "1.3143, FLORIDA S?ATLMS
(ELECTED OFFICERS:
A person holding elective county, municipal, or other local public office MUST ABSTAIN from voting on a measure which inures
to his sNcial private gain. Each local officer aho is prohibited from knowingly voting on a measure which inures to the special
gain of a principal (other than a government agency) by whom he is retained.
In either case, you should disclose the conflict:
PRIOR TO THE VOTE BEING TAKEN by publicly stating to the assembly the nature of your interest in the measure on
which you are abstaining from voting, and
WITHIN IS DAYS AFTER THE VOTE OCCURS by completing and filing this form with the person responsible for recording
the minutes of the mating, who should incorporate the form in the minutes.
APPOI NTED OMCERS:
A person holding appointive county, municipal, or other local public office MUST ABSTAIN from voting on a measure which
inures to his special private On. Each local officer also is prohibited from knowingly voting on a measure which inures to the
special gain of a principal (other than a government agency) by whom he is mained.
A person holding an appointive local office otherwise may participate in a matter in which he has a conflict of interest, but must
disclose the nature of the conflict before making any attempt to influence the decision by oral or written communication, whether
made by the officer or at his dirmlon.
IF YOU INTEND TO MAKE ANY ATTEMPT TO INFLUENCE THE DECISION PRIOR TO THE MEETING AT WHICH
THE VOTE WILL BE TAKEN:
• You should complete and file this form (before making any attempt to influence the decision) with the person responsible for
recording the minutes of the meeting, who will inicorporate the form in the minutes.
• A copy of the form should be provided immediately to the other members of the agency.
• The form should be read publicly at the meeting prior to consideration of the matter in which you have a conflict of interest.
f# you mAKR NC ATi'RI► PT TO !NmusNCR TNE bzasim zxapt RY Cts=ioN AY Tme muTINC):
a You should diutose ot&tly the "lure of your eonllict in the taeasure before partidpating.
should complete Motto and f1k I within Witt to she the t the vote
�n �h the person 118ibk for reed ifti the minutes
of the meetins. who
ONCLO=NRf OIL LOCAL OFFiCLR•i W'r" IT
,• ..�.r i� _ _v 1 ,imm� r . �T r . • herft disclose that Ott %brbu a r v 2 a • 19 l
(a) A samure came or will come before my agency which (check one) A=
inured to my special private gain; or
inured to the special pin of , by whom 1 am retained.
(b) The measure before my agency and the nature of my interest in the measure is as follows:
r
�
V
:.a
Lin
rt sosaW ru WIM 1AGE a
WHO MM IFU FORM W
This form is for use by any person serving at the county, city, or other local level of government on an appointed or elected board,
council, commission, authority, or committee. It applies equally to members of advisory and non -advisory bodies who are presented
with a voting conflict of interest under Section 11I.3143, Florida Statutes. The requirements of this law are mandatory, although
the use of this particular form is not required by law. you are encouraged to use it in making the disclosure required by law.
Your responsibilities under the law when faced with a measure in which you have a conflict of interest will vary greatly depending
on whether you hold an elective or appointive position. For this mason. please pay close attention to the instructions on this form
before completing the re+ -erne side and filling the form.
INSTRUCTIONS FOR COMPLIANCE WITH INCTiON "2.3143, FLORIDA $TATUM$
ELECTED OFFICERS:
A person holding elective county. municipal, or other local public office MUST ABSTAIN from voting on a measure which inures
to his special primate gain. Each local officer also is prohibited from knowingly voting on a measure which inures to the special
gain of a principal (other than a government agency) by whom he is retained.
In either case, you should disclose the conflict:
PRIOR TO THE VOTE BEING TAKEN by publicly stating to the assembly the nature of your interest in the measure on
which you are abstaining from voting; and
WITHIN IS DAYS AFTER THE VOTE OCCURS by completing and filing this form with the person responsible for recording
the minutes of the mating, who should incorporate the form in the minutes.
APP01%'TED OFFICERS:
A person holding appointive county, municipal, or other local public office MUST ABSTAIN from voting on a measure which
inures to his special private pin. Each local officer also is prohibited from knowingly voting on a measure which inures to the
Special gain of a principal (other than a government agency) by whom be is retained.
A person holding an appointive local office otherwise may panicipatc in a matter in which he has a conflict of interest. but must
disclose the nature of the conflict before making any attempt to influence the decision by oral or written communication, whether
made by the officer or at his direction.
IF YOU INTEND TO MAKE ANY ATTEMPT TO INFLUENCE THE DECISION PRIOR TO THE MEETING AT WHICH
THE VOTE WILL BE TAKEN:
• You should complete and file this form (before making any attempt to influence the decision) with the person responsible for
recording the minutes of the meeting, who will incorporate the form in the minutes.
• A copy of the form should be pra•ided immediately to the other remembers of the agency.
• The form should be read publicly at the mating prior, 10 consideration of the matter in which you have a conflict of interest:.
t It
4
1P VOU MAKE NO ATTEMPT TO INFLUENCE THE DECISION EXCEPT BY DISCUSSION AT THE MEETING:
a You should disclose orally the nature of your m1lict in the measure before participating.
a You should complete the form and fik it within IS day:Oler the vote occurs with the person +r'apunsibk for teewding the minutes
of the meeting, who should incorpotate the form in the tnitttttes.
04CLOWN OF LOCAL OFFICER'S 00 IT
t r.. Plummer. Jr. February 28 -.I 9 t
� hereby disclose that on _ � ..
(a) A measure arse or will come before my agency which (check one)
Zinured to my special private gain; or
— inured to the special gain of
(b) The measure before my agency and the nature of my interest in the measure is as follows:
. by whom 1 am retained. -
Tj
;ter
f
NOTICE: UNDER PROVISIONS OF FLORIDA STATUTES 1112.317 (1985). A FAILURE TO MAKE ANY REQUIRED
DISCLOSURE CONSTITUTES GROUNDS FOR AND MAY BE PUNISHED BY ONE OR MORE OF THE FOLLOWING:
IMPEACHMENT, REMOVAL OR SUSPENSION FROM OFFICE OR EMPLOYMENT. DEMOTION, REDUCTION IN
SALARY. REPRIMAND. OR A CIVIL PENALTY NOT TO EXCEED S5.000.
tt iOMM as 1aM :IAGE-,. ; #�