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HomeMy WebLinkAboutM-84-0586RALPH GIT% 0ONGIF C-4, r !­t DEPUTl CM CIFPV� A.FT SUFrop.1 1! 3- (-P'< I r--On June 5, 1984 Mr. Paul N. Pappas Secretary of Transporation 605 Swannee Street Tallahassee, Florida 32301 RE: Flagler Street - Removal of Designation Dear Mr. Pappas: Enclosed herewith, please find a copy of City of Miami Motion No. 84-586 passed and adopted by the City of Miami Commission at its meeting held on May 24, 1984, which is self-explanatory. Your favorable consideration of this issue will be greatly appreciated. Respectfully yours, G 1ph G. Ongie City Clerk RGO: MH: s 1 ENC: a/s cc: Governor Bob Graham OFFICE Of THE CITY Ctflkh,City Hall 3500 Pan American Drive/Miami. Florida 33133 5'9-60(,� '0Af . OP 4V.'s peo k �i 3 19 CITY OF MIAM1, FLORIDA C INTER -OFFICE MEMORANOUM TO: Howard V. Gary City Manager DATE: SUBJECT: FROM: REFERENCES: Walter L. Pierce. Assistant City Manager (Acting) ENCLOSURES: May 17, 1984 FILE: Flagler Street Arcades It is requested that this item be scheduled for discussion by the City Commission on the May 24, 1984 agenda. On January 13, 1983 the City Commission adopted Motion No. 82-32 which reads: A MOTION OF INTE14T TO APPROVE I14 PRINCIPLE A PROPOSAL FOR I111PROVEMENT OF PEDESTRIA14 TRAFFIC 014 FLAGLER STREET; FURTHER INSTRUCTING THE CITY MANAGER TO PROCEED TO STUDY T1?E FLAGLER STREET AREA FOR CONSIDERATION OF A SPECIAL OVERLAY ZONING DISTRICT; FURTHER STIPULATING THAT THE CITY COMMISSION WOULD BE I14 FAVOR OF BUILDING ARCADES AL014G CERTAIN SECTIO14S OF FLAGLER STREET. Further, in March of 1983 Section 54-100 of the City of Miami Code was amended in an effort to provide for restaurant arcades to be erected above the sidewalks of Flagler Street in Downtown Miami. Since that time we have researched State of Florida regulations and just recently received a legal opinion (copy attached) from the City's Law Department, all in an effort to bring this concept to reality. A number of meetings were also held with staff of the Downtown Development Authority, Downtown Miami Business Association and we have discussed this matter with Assistant City Attorney G. Miriam Maer who, prior to the formal legal opinion, provided an analysis. U 3 Howard V. Gary City Manager May 17, 1984 Page 2 Basically the analysis and the City Attorney's opinion indicate that the proposed arcades will not be allowed pursuant to Section 339.301 of the Florida Statues which prohibits commercial use of the right-of-way of any state maintained road. Additionally, the Florida Department of Transportation has adopted rules which do not allow any private or commercial use of the State maintained right-of-way except those uses that are specifically permitted; a restaurant arcade is not a listed use. State rules and regulations are referenced here because Flagler Street is designated as a part of the State highway system. It should be pointed out that there is a possibility that Flagler Street can or will be de -designated upon the request of the City and provided the City accepts responsibility for maintenance, future rebuilding and liability for accidents and personal injury. In addition to the above there is a question as to whether or not the support columns fot• second level restaurant arcades can be constructed i.n the publ i.c right - of --wa;y regardless of what governmental entity has juriSdicti011. Presently the only encroachments allowed in the public right--of-way by the South Florida Building Code are foundations which encroach up to a maximum of six (6) inches. Accordingly, support columns cannot be constructed in the manner proposed. In conclusion, this :natter is requested to be considered by the City Commission in order that we receive from the Commission its explicit policy determinations and directions regarding the following listed issues. 1. De -designation as a State road. Acceptance of Flagler Street from N.W. 3 Avenue to Biscayne Boulevard means the City would assume additional maintenance costs of approximately $5,000 per year plus future rebuilding costs. Presently, the City is expending approximately $30,000 per year maintaining the decorative sidewalk and an additional $7,000 for landscape maintenance. It :rust be pointed out that the Florida Department of Transportation is presently re-evaluating its classification as State roads South First, North First and Flagler Streets; it is also probable that such a reclassification will occur as the State seeks to reduce its responsibilities. rft 0 • 2. Grants of privilege for use of right-of-way It appears that a determination, based on additional research by the City Attorney, needs to be made as to whether "....express legislative or delegated authority exists..." for the City to grant a limited privilege that would allow restaurant arcades. Specifically this refers to the sufficiency or adequacy of the 1983 amendment to Section 54- 100 of the Code. 3. South Florida Building Code As previously noted, restaurant arcades as presently envisioned would not be permissible. Several amendments would be needed and the decision to pursue such should be made by the City Commission. Upon resolving the above issues it is staff's intent and direction to proceed with this project. CITY OF MIAM1. FLORIDA INTER -OFFICE MEMORANDUM . i , . . _ . .O: Sergio Rodriguez, Director DATE: May 10, 1984 FILE: MIA-84-OS Planning Department SUBJECT: Proposed Flagler Street Restaurant Arcade 'ROM: Jose Garcia -Pedrosa REFERENCES: A-84-290 City Attorney4 / ENCLOSURES: You have asked me to render a legal opinion on the following question: -CAN THE CITY OF MIAMI ALLOW ABUTTING PROPERTY OWNERS TO USE THE PUBLIC RIGHT-OF-WAY ALONG FLAGLE R STREET, A STATE -MAINTAINED HIGHWAY IN DOWNTOWN MIA11I , FOR COMMERCIAL PURPOSES? In responding to this question, you have asked that I consider the following facts: The City Coirtmission by Motion 11'63-32 adopted January 13, l.983, her,, expr.:esscd an interest in developing a special district encompassing do�-.ntown Flagler Street in which restaurants at the second -story levcl. within the public right- of-way ("restaurant arcades") would be allowed by revocable permits. The commercial use of the right-of-way would be limited to restaurants at designated locations at least twenty-five feet from street corners and not adjacent to existing bus stops or loading zones. Furthermore, the revocable permits would only be issued to abutting property owners who incorporate the arcade restaurant into a second floor restaurant on their private property. The Downtown Development Authority has indicated it has no knowledge of any arcades in Florida constructed in the public right-of-way. The answer to your question is in the negative, for the reasons that follow: No encroachments of the Flagler Street right-of-way for private commercial use are allowed. §339.301, Florida Statute (1983) entitled "Unlawful commercial use of state -maintained road right-of-way; penalties." provides, in pertinent part, as follows: (1) Except when otherwise authorized by law or by the rules and regulations of the department, it is unlawful to make any 84-SSC 84-587 84-E .„:.:., Y .. __ _ r ._,. _.:ram-�; Sergio Rodriguez, Director Planning Department May 10, 1984 Page 2 commercial use of the right-of-way of any state -maintained road, including appendages thereto, and also including, but not limited to, rest areas, wayside parks, boat -launching ramps, weigh stations, and scenic easements. Such prohibited uses include, but are not limited to, the sale, or the display for sale, of any merchandise, the servicing or repairing of any vehicle except the rendering of emergency service, the storage of vehicles being serviced or_ repaired on abutting property or elsewhere, the solicitation for the sale of goods, property, or services or for charitable purposes, and the display of advertising of any.= s,ort:., c.,c(-,,pt that any portion of a state -maintained road may be used for an art festival, parade, fair, or other special event if con- trolled or permitted by they appropriate governing body or authority. No activity or event authorized by this subsection shall take place unless written approval has been obtained from the Department of Transportation. Nothing in this subsection shall be construed to authorize such activities on the interstate highway system. The Department of Transportation has adopted rules implementing its policy regarding private use of the right-of-way. Florida Administrative Code Rule 14-20.01 provides that the policy of the department is to clear all right-of-way throughout the state of all private or commercial uses, except to the extent that they are specifically permitted by other departmental policies. Subsequent rules provide for permitted encroachments for the specified purposes of radio broadcasting equipment within tunnels and bus benches and transit shelters at approved locations. No other encroachments of private uses are permitted. Thus, it is clear that the proposed restaurants are not permitted as long as Flagler Street is included within the state highway system. In the event the state returns jurisdiction and maintenance responsibilities for Flagler Street to the City of Miami, the following discussion may be of assistance to you in further planning of this nature. 84- ;86 84 -S - 84"!S' Sergio Rodriguez, Director Planning Department May 10, 1984 Page 3 City streets are held in trust for the benefit of the public. Where express legislative or delegated authority exists, a municipality may grant a private individual a limited privilege by license or permit to utilize a portion of a public right-of-way for a specific purpose. The privilege is one that may be withheld, restricted or withdrawn at the discretion of the granting authority. It may be granted to one person and withheld from others. Jarrell v. Orlando Transit Company, (Fla. 1936) 167 So. 664; 29 Fla. Jur. 2d, (1981), "Highways, Streets, and Bridges", 9129 "Permit or franchise for private business purposes and for public utilities". All permits issued by a municipality authorizing use of its streets by a private person are revocable, and no permanent right to use the streets for private purposes can be acquired. There is no case. law interpreting the Lights of: cities to permit temporary= ,:,tructur.cs :,uch a:-, those contemplated in your: proposal. The cases concerning use, of public fot cc-)mmer.ci.al purpose concern ornarent al. markers and tr:<anF;,-port: itiori related issues uch 3 1-mi :stops -.,j-)) t >;i.cal.) fr:anch7.sof.". The City of. t,i.i.mi. Coda provides for the development of restaurant arcades in the Flagler Street overlay district by revocable permit. Thus, any permitted encroachment must be temporary in nature. However, it is suggested the intent to establish the arcades in the right-of-way be clarified so that express authority would exist for the proposed arcades. The Supreme Court of Florida in Smith v. Bus Stops of Greater Miami, 89 So.2d 221 (Fla. 1956) stated ". . . in the absence of express legis- lative authority, a city has no power to grant to a private individual a privilege to use any portion of its streets or sidewalks for a special private purpose." In that case, the Citv had entered into a contract granting permission to Bus Stops of Greater Miami, Inc., to place markers along City streets. The markers would be placed at bus stops and would provide infor- mation of interest to the public and would provide for a small amount of advertising. The suit was filed by property owners adjacent to whose property one of the approved markers was destined to be located. The City attempted to argue unsuccess- fully that it had the authority to enter into the contract in question by implication from its general police power or from its express charter authority to regulate the use of its streets. In reaching the above conclusion, the Supreme Court followed its previous decision as set forth in the case of Edwards v. Town of 84E-"58C 84- -8 8 -5-s t i +i Sergio Rodriguez, Director Planning Department May 10, 1984 Page 4 Lantana, 77 So.2d 245 (Fla. 1955) in which it held that in absence of a statute authorizing the town to allow the use of public property for private purposes, a contract permitting certain developers to install structures (in that case, orna- mental markers) which would serve a private interest on public property was ultra vires and therefore, the contract was void. The City should also be aware that Flagler Street is dedicated by plat to the perpetual use of the public and the dedication may be jeopardized if the proposed use is not consistent with, or interferes with its present use. As we discussed at our previous conferences, the question of relocating existing utilities in the right -of --way and the potential liability of the City are matters that must also be resolved. The South Florida1zui.3di.riq Cade (s17£.c) }?i:e:�ent1.�= prohihi.t.- en- croachment of foundationsJn thcs xi.gl7ICI -of ay i.II C,,,CC. 0f six inches. ijl o, i.t. lJa:o}7il)it: l)kiman accu�incy of marquccs, ar7d ­01 cantilevering of an rig=ruing or canopy over the right:: c�; `;<,,._. An amendment to this Code i.2 aI:>a s.ugcaested t o clear authority for the proposed construction. (See So�.ith £Jor.ida Building Code, 993603.3, 3603.7, 4404.2, (1979)). Section 203 of the South Florida Building Code provides for determinations of alternate materials and types of construction by the Board of Rules and Appeals and it is suggested the contemplated project be reviewed by the Board prior to proceeding any further. Another point to consider is the encroachment on abutting property owners' easements for ingress and egress and air, light, and view. In some jurisdictions it has been held that an abutting property owner has limited "special rights" in the street adjacent to his property. Although these rights have been a fruitful source of litigation in the courts, one can generalize the special rights of an abutter as follows: the right to encroach on the street, temporarily, in front of his property, subject to valid police regulations; the right to have the street remain unobstructed and used by the public for public purposes only, so as not to interfere with his ingress and egress from his property, and his right to air, light and view. 7t has been held that, subject to proper municipal regulations enacted pursuant to the police power, minor encroachments on the street by the abutting property owner such as awnings, steps, signs, and the like have been permitted. However, the abutter has no legal right to make a private business use of a street unless an 84- 58c 5 Sergio Rodriguez, Director Planning Department May 10, 1984 Page 5 ordinance expressly authorizes permits for such use to be issued by the City. Furthermore, the abutter cannot interfere with the access, light and air, and view rights possessed by. adjoining abutting owners. McQuillan, Municipal Corporations, Volume 10, §30.54 "Rights of Abutting Owners; in general -Furthermore, it has been held in other jurisdictions that an ordinance permitting the abutting property owner, for his own benefit, to encroach on a public street with his building, is unconstitutional as a deprivation of property without due process of law if it impairs the easements of access, light, air, view etc. of his neighbors without due compensation. McQuillin, Municipal Corporations, Volume 10, §30.48 "Power to Permit Encroachments in General". The rights of the abutting property owners, as well as the publict to have the street in front of their property kept open for the t�enefit of light and air must be protected. 29 Fla. Jur. 2d (19el) , "lzighw ys, Streets and Bridges", §86. Prepared and Approved by- G. Miriam Maer Assistant City Attorney JGP/GMM/wpc/ab/271 cc: Walter Pierce, Acting Asst. City Manager Roy Kenzie, Director, Downtown Development Authority Don Cather, Director, Department of Public Works 84-SSC