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HomeMy WebLinkAboutM-87-084511 eA CrIT DF MIAMI. n.MDA INTtER4FMK MaTAORANDUM DAM. . � PILL. TW Cesar 8. Odio. City Manager August il, 1987 Att: Aurelio Peres-Lugones w.xa.: Discussion item concerning Time Restrictions attached to obanges in soniag Luoia A. Dougherty City Corm' sion Agenda City Attorney Seple}mber 8. 1987 &11`0 Please place the following discussion item on the September 8, 2987 City Coasission Agenda: -Disoassion concerning City A,ttorney`s opinion on Time Limitation Restrictions which may be attached to changes in zoning,' LAD:RFC:bss:P444 cc: Sergio Rodrigues With Fuentes Don Cather G. Miriam Maer ,ti 2 I� CITY OF MIAMI. FLORIOA INTER -OFFICE MEMORANDUM 'O Honor 1 Mayor and members of e C ty Commission / C CIRoM Luc . Dodgherty Cit Attorney oi%rc` August 3, 1997 ` ``MIA-87-56 stjsiccr Legal Opinion: i. Time Restrictions Attached to Changes of Zoning 49repaNCES11. Recent Zoning Law Decisions- ENC60sunes Vice Mayor J. L. Plummer requested a legal opinion on n substantially the following question: I. CAN CHANGES OF ZONING INCLUDE A CONDITION WHICH IMPOSES A TIME LIMITATION WITHIN WHICH DEVELOPMENT MUST OCCUR OR THE ZONING WILL REVERT TO ITS PRIOR DESIGNATION? The answer to your question is that the property may be down -zoned but only by following the same procedures and applying the same standards as the original rezoning application. When applications for changes in zoning are submitted, the zoning board must make recommendations based on its consideration of several criteria. Among the sixteen (16) specific criteria are included whether or not: .1. The change is in conformity with the Miami Comprehensive Neighborhood Plant 2. The change is out of scale with the needs of the n neighborhood or the City; 3. Changed or changing conditions make the passage of the proposed change necessary; _446„The proposed change would materially alter. the population density pattern and thereby increase or overtax the load on public facilities such asp schools, utilities, streets, etc.; and 5. There are substantial reasons why .the property` cannot be used in accord with existing zoning. City of Miami, • Florida, Ordinance No. 9500 Section 3509 (see this section for the full -list of criteria). t In general, the above criteria that must be addressed by the Boning Board and City Commission relate to the effects of the proposed change. These criteria must be addressed for each t I ? • n Honorable Mayor and members of the City Commission August 3, 1987 Page 2 Therefore, a change of zoning that would cause a previously granted zoning change to revert to its prior designation must be treated with the same dignity and meet the same requirements as other types of change of zoning applications, i.e., the change must be in -conformity with the Miami Comprehensive Neighborhood Plan, etc. These criteria must be applied whether the condition is imposed by the City Commission or is negotiated. If the decision on a change of zoning was based upon an agreement between the City and the property owner that the zoning will revert to its prior designation if development is not begun within a certain time period, there is a potential problem that the decision will be labeled "contract zoning' and therefor be invalid as an abdication of the municipality's police power. If there is no valid basis independent of the agreement upon which to justify the change of zoning, the court will declare the action contract zoning. Hartnett v. Austin, 93 So.2d 86 (Fla. 19SO . In Hartnett, the City of Coral Gables passed a zoning amendment whc would allow construction of a shopping mall, using language that said the rezoning was "subject to and conditional upon" observance of certain restrictions, among which were the building of a surrounding wall and the provision of adequate police protection in the area at the owners' expense. The Supreme Court of Florida held that the conditioning of the amendment upon the subsequent execution of a contract between the municipality and a private party is invalid contract zoning. The language used wade it clear that the change was ,on��lmade because of the property owners' promise to provide certimprovements. This is an invalid reason upon which to base a zoning ordinance amendment. City of Miami, Florida, Ordinance No. 9500, Section 3509. eoweY%g,..:since the Zoning Ordinance provides in Article 35, Section 3S02.1 that applications for zoning amendments may be made by the City Commission, Planning Advisory Board, Zoning Board, any other department or agency of the City, or any person other than those listed above, in the event a time condition in attached to the change of zoning and the properly is not developed within said time frame the Planning Oepartpent could initiate a rezoning of the property. Of course, Iin accordance' with the Zoning Ordinance, the procedure for change of zoning' would have to be followed, and the same criteria for`soning review applies as foe the initiation of any down zoning proposal.- NO ?1� Honorable Mayor and members of the City Commission August 3, 1987 Page 3 II. AT THIS TIME, WE BELIEVE IT IS IMPORTANT THAT THE COMMISSION SHOULD BE AWARE OF THE FOLLOWING RECENT 3RD DISTRICT COURT OF APPEALS AND U.S. SUPREME COURT ZONING LAW DECISIONS: 1. City of Miami Beach v. Amoco Oil Co., 12 E.L.N. 1539 (June 23, . The 3rd District Court of Appeals affirmed the Circuit Court of Dade County's decision invalidating City of Miami Beach Zoning Ordinance Section 27-1.D.3. This ordinance was aimed at preventing state -licensed vendors from selling alcoholic beverages for off -premises consumption. However, in Florida Statutes (1985) Section 563.02, which sets license fees for vendors, the legislature has expressly preempted any municipality or county authority from enacting zoning ordinances prohibiting the sale of beer by state -licensed, gasoline filling stations, for off -premises consumption. The statute states that "vendors holding such off -premises sales licenses shall not be subject to zoning by municipal and county authorities." Therefore, the issue of gasoline stations selling beer and wine for off -premises consumption cannot be controlled by local zoning ordinances. You may recall that this Commission did not amend the current City Ordinance which prohibits such sales. However, by legal opinion this provision has not been enforced. If the state law is amended in the future, the City Ordinance could then be enforced. 2. First Rnalish Rvsuaelical Lutheran Church of G1 We Loos PJK*Les county. 96 beame za z5u wune 9, 19s7 i . The first Lutheran Church operated a retreat center from 1957 untii,.LW- in a canyon along the banks of a creek that is a natural drainage channel for a watershed area. In 1978, a flood destroyed the complex, and Los Angeles County adopted an interim ordinance prohibiting construction within the flood area, which took effect Immediately to protect public health and safety. The United States Supreme Court held that this regulation, which effectively denied the church tompocacily, of all use of. its property# entitled the church to be compensated under the Fifth Amendment "just compensation clause" for the. period before the courts finally determine that the regulation is a.,Otaking" of property. Even invalidation of the ordinance does not relieve the government of its duty to compensate for tht inverse Honorable Mayor and members of the City Commission August 3, 1987 Page 4 condemnation period during which the taking was effective, as invalidation without payment of fair value for the use of the property during which the church was denied such use is a constitutionally insufficient remedy. 3. Machado v. Musgrove, 12 P.G.W. 1729 (July 14, 1987). Petitioners sought to have their property rezoned from GU (interim zoning) to RU-SA (residential office) in an area designated by the comprehensive land use plan as estate residential up to two units per gross acre. The County Commission granted the requested zoning change. The Dade Circuit Court for Dade County reversed the Commission's decision, thereby voiding the rezoning. The court applied the *fairly debatable• standard, which says that if reasonable people could differ as to the propriety of the zoning action, i.e., whether the action is arbitrary or an abuse of discretion, then a reviewing court will not disturb the administrative decision. The 3rd OCA held that was the incorrect standard to apply, and stated that the correct test in reviewing a challange to a zoning action on grounds that it is inconsistent with the comprehensive plan is whether the zoning authority's determination of conformity .with the comprehensive plan is supported by competent and substantial evidence. This burden of proof is harder for an applicant to meet, as it calls for strict judicial scrutiny instead of deterrence by the courts to the Commission's action. The 3rd District Court of Appeals denied certiorari, however, thereby upholding the Circuit Court's voiding of the rezoning because the .-� applicants failed to show that their proposed commercial project was consistent with each element of the land use plan and that it furthered its objectives, thereby applying the strict judicial scrutiny test. 4. .:oLian v. California Coastal Commission, 1 F.L.W. red. S108S (June 260 . The California Coastal Commission granted a permit to the: Nollans to replace a small bungalow on their beach front property with a larger house upon the condition that they allow the public an easement to pass across their beach, which was located between two public beaches. The state made the claim that the easement was necessary to further such legitimate governmental goals as protecting the public's ability to see the beach and preventing i beach congestion. The United States Supreme Court ruled that the conditioning of a building permit upon the easement grant was the incorrect procedure to use, as the condition does not serve public purposes related to permit requirements. The States. iYr • l: r ate q, A Honorable Mayor and members Auqust 3, 1987 of the City Commission Page 5 other goal, that of advancing its comprehensive plan to continue beach access arising from prior coastal permit decisions, should be met by an exercise of its eminent domain power, thereby paying for the access easement. Although this goal is legitimate, however, that "does not establish that the Nollans alone can bP compelled to contribute to its realization." 1 PLW 51089. PREPARED BY: 'G. Rician Naer Assistant City Attorney LAD/GMM/rcl/ebg/M077 cc: Mayor Xavier L. Suarez and City Commissioners Cesar H. Odio, City Manager Sergio Rodriguez, Director of Planning Department Donald N: Cather, Director of Public Works Department Edithw wastes, Director of Builftng and Zoning Department