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HomeMy WebLinkAboutR-82-0574©"M: f, RESOLUTION NOr AO A RESOLUTION RESCINDING RESOLUTION NO, 81=488, ADOPTED MAY 28, 1981, GRANTING THE CLOSING, VACATING, ABANDONING AND DISCONTINUING THE PUBLIC RIGHT OF NAY (PUBLIC ALLEY) JEST OF VIRGINIA STREET BETWEER OAX AVENUE AND GRAND AVENUE AS A CONDITION OF TENTATIVE PLAT NO, 1098=A "PODSAID SUB" WHEREAS, subsequent to the passage of Resolution No, 81-483, discontinuing the public right of way of a public alley, a pro- perty owner filed suit; and WHEREAS, the lawsuit is currently pending in the Third District Court of Appeal; and WHEREAS, the property owner has also put the City on written notice of its intent to hold the City liable in damages for inverse condemnation in the event of the wrongful closure of said alley; Florida Courts have previously upheld such an action against a municipality and the damages can be substantial; WHEREAS, to best serve the interests of the City of Miami, Resolution No. 81-483 should be rescinded, because closure of the alley would be a violation of the City Code, Section 54-4, which requires the consent of holders of all abutting property interests; NOW, THEREFORE, BE IT RESOLVED BY THE COMMISSION OF THE CITY OF MIAMI, FLORIDA: Section 1. Resolution No. 81-483, adopted May 28, 1981, granting the closing, vacating, abandoning and discontinuing the public right of way (public alley) west of Virginia Street between Oak Avenue and Grand Avenue is hereby rescinded because of all the legal implications involved. My COMMISSION MEETING OF ,JUN2 4199e VMn K,..,,.,,..,,.,,, PASSED AND- ADOPTED this 24 day Of June 1982, I - Maurice A. Ferre MAURICE A. FERRE,- MAYOR ATTEST: /0 LP G--.T-N—GIE CITY CLERK CrTLYP4 PREPARED AND APPROVED BY: / V► 0�� TERRY V. PERCY DEPUTY CITY ATTORNEY APPROVED AS TO FORM AND CORRECTNESS., 4GE F. KNOX, JR. TORNEY " 2- SZ-3174- S ' y lei THE Cfftcutt COURT Or THE 11T" JUMIA.i, CIACUM M W POA ME COUNTY i FLORIDA OiltMAt JURtAbtetION bVISION CASE NO, 614874 (CA 021 GRANb SERVICES, INC.! a Florida corporation, t Rlaintiff, vs. COCONUT GROVE CAMERA, INC., a Florida corporation and s HERDERT ttROY LAWSON, tin.? individually, : Defendants. PINAt =CMENT ADJUDICATING _.PRES_CRIPTIVE_EASEMENTS THIS CAUSE having come before the Court on the stipulation set forth hereinafter, and the Court having examined the file, and being otherwise fully advised in the premises, it is hereby ORDERED AND ADJUGED ad follows! 1. The Court finds, orders, adjudicates and declares that Plaintiff, GRAND SERVICES!-INC., its predecessors, successors and assigns, holds and owns, and have held and have owned, a prescriptive easement in their favor,. over and across the toah (10') foot alley which comprises the rear of the property of Defendant, HERBERT LEROY LAWSON, JR., located at 3029 Grand Avenue', Miami, Florida, more particularly described in Exhibit "A" attached hereto and made a prart hereof. 2. The Court finds, orders, adjudicates and declares that Plaintiff, GRAND SERVICES, INC., its predecessors, successors and assigns, holds and owns, and:have held and have owned, a prescriptive easement in their favor, over and across the ten (10') foot alley which comprises the rear of the property of Defendant, COCONUT GROVE CAMERA,-INC., located at 3015 Grand Avenue, Miami, Florida, more particularly described in Exhibit "B" attached hereto and made a part hereof. 3. The Court finds, adjudicates and declares that the Aforesaid prescriptive easements in favor of Plaintiff, GRAND SERVICES, INC., its predecessors, successors and assigns, has existed since at least 1940, and arose out of more than 20 years r of ��t��i� oontnuous, uhhterrupted� end �d�er�e use �f the -{ properties desoribed in aforesaid fxhibita "A" and "b" by the plaintiff and its predeeesaers, under a eiaim of right, for a ! period of 20 years prior to 1040, and e6htinuously to the date hereof, which uses wore open, notorious, visible, Uhinterrupted,And with the knowledge, but without the peirffliasiort, of adjoining property ownorst including the Defendants and their predecessors in title. 4. The Court finds, adjudicates and declares that the aforesaid prescriptive and hAVe At all times during their i existence constituted, a property right owned by GRANb SERVICES, INC.► and its predecessors in title, incident Arid appurtenant to their ownership of the property located at 3011 - �025 Grand Avenue, Miami, f Florida, more particularly described in Exhibit "C" attached hereto and made a part hereof. 5. The Court finds, adjudicated and declares that the aforesaid prescriptive easements provide, quatantee and preserve the rights of plaintiff, GRAND SERViCM INC., its successors and assigns, and those claiming by, through or under them, to cross over, and gain ingress -and •.egreds thrbugh # the ten (10' 1 foot alley which Comprises the rear of the afbtesdid properties of Defendants, more particularly described in Exhibits "A" and "B" attached hereto and made a part hereof. 6. Defendants, HERBERT tEAOY tAWSON, his successors and assigns, and COCONUT GROVE CAMERA, INC., its successors and assigns, be and the same are hereby permanently restrained and enjoined from obstructing or in any way interfering with the aforesaid rights of the Plaintiff, its successors and assigns, arising out of the aforesaid prescriptive easements, which injunction shall include restraint from the plaeenieht of shy obstacles which would prevent either vehicular' or pedestriah access over and across the ten (101) foot alley which comprises the rear of the property of Defendants, more particularly -described in Exhibits "A" and "B" attached hereto and made a part hereof 7. The Court reserves jurisdiction for the enforcement of this Final Judgment, and matters incident hereto. 8Z-a 4— d N , OAbE Eb, ANC3 ANIUMEN in Miathi, bade tnunty, P 6rida thia r day bf M yt IDA!. DONAW E. STONE LL �t CIRCUIT JUDGE fi ip Ui.liT=TON IT IS NE ny stipulated Acid dorb'd by and between plaintiff, GRAND SERVICES, INC., and befendants► COCONUT GROVE CAMERA, INC., and HERBERT LbAOY LAWSORt JRi, as follows! 1. That the foregoing Final Judgment should be entered by the Court, the contents of which are true and correct, and the terms and provisions of which Are &Oreeahle to all of the above i parties. 2. That the plaintiff, OJZANb SbRVICES, INC., and its I predecessors in title to the property Located At 3031 - 3035 Grand Avenue, Miami, Florida, more particularly degeribed in Exhibit "C" — attached hereto and trade a part hereof have made use of the ter. (101) foot alley which constitutes �hd teak of the property of Defendants, COCONUT GROVE CAMERA, INC., and HtV8ERT LEROY LAWSON, JR., more particularly described in Exhibits "A" and "R" attached hereto and made a part hereof, which use has been for a period in excess of 20 years prior to 1948, and said use continues to date, and said use is and has always been actual, continuous, uninterrupted, r adverse to the Defendants, COCONUT GROVE CAMERA, INC., and HERBERT LEROY LAWSON, JR., and their predecessors, under claim of right, and with the knowledge but without the permission of the Defendants, COCONUT GROVE CAMERA, INC., and HEREERT LEROY LAWSON,JR. and their predecessors, during the entire period of said use,,and that aforesaid use by the Plaintiff and its predecessors in title wasp is and always has been hostile to, and inconsistent with the full use and enjoyment of the aforesaid property by the Defendants, COCONUT GROVE CAMERA, INC., and HERBERT LEROY LAWSON, JR „ and their respective predecessors in title. 3. That Plaintiff and Defendants, have agreed not to 03• 8 -P7 M s oe@k an adjudication and award bf off§t§ and/fir attorneys feeg only against eaeh ether, in-�hia aetion; this ajre0ment not extending to third parties, tN wmngB WH89c6F, the undersigned, either ihdivi- dually, in their own right, And/eat by and through their undersigned attorney and/or attorneys, have hareunto set their hands this day of may, 1982. Ely SHAFIRO, ESt7. � NA b �tftrNAAb Attorney for Defendant, Attorneys for plaintiff HERBERT LEROY LAWSON, Ch. 927 Lincoln Road - Suite 112 950 South Miami'Avenue Mithii Beach, Florida 33139 Miami, Florida 33130 '(305) 538-0627 (305) 371-8184 By$ HY H PIRG qMNIS I AN RICRARr� Accepted and approved, expressly . COCONUT GROVE CAMERA, INC., a by HERBERT LEROY LAWSON, JR., Florida Corporation, Defendant Defendant gys HERBERT LEROY LAV910N, JR. PreB den (ALBERT GRUBAIR) (305) 44 0521 r J , l 82,-3 4-- That eattain Alloy and right&8,1"WAY b63Mg tho nof=th ten (to') feet of the foilowifig dodek .bod pbob'typ situate, lying and being In thL& Q®tfnty bf bMdd AM state of Pl,orida, to=wit: ` All that part of the 661ltMtLh8t Quarter (Stagy-1/4) of the Ndtth§Mat Quarter (Nt-1/4) of Seetion 21j Township 54 South# Range 41 taste and ninre patticuiatly denetibed at follows, to -wit! Commencing at h 061ht ph thi 9euth line of the above mefltion6d Northeast Quarter (NE-1/4)) 1533 felt WOlt from the Southeast cdrlfet theretill thence run North at right ahgias to the said South line 221 feetl theflee bun Bast 30 feetf thenc6 tun bouth 221 fLett to the aforementioned youth linel,thence run west along the South line 10 feet to the point or place of beginning, less, howevert the fol.lowinj parcel of land lying in the Southwest Quarter (Sw-1/4) of the Northeast -Quarter (NE-1/4) of said Section 21, Township 54 South, Mange 41 East, and more particularly described as followdp to -wits, Commencing at a point 15ig feet West and 33 feet North of the Southeast corner of the Northeast quarter (NE-1/4) of Section 21, Township 54 Southo Range 41 East, for a point of• beginningl thence run North 63 feet;/thence southeasterly 63 feet to a point 0.17 feet East of the point of beginning; thence West 0.17 feet, to the point of beginning; said Tract being designated as Tract "A" on Sketch of Survey attached to Warranty Deed recorded in Deed Book 1642, at Pago 302, of the Public Records of Dade County, Florida; which property, located at 3029 Grand Avenue, Miami, Florida, was acquired by Defendant, Herbert Leroy Lawson, Jr.# by virtue of warranty Deed recorded September 29# 1961 under Clerk's file No. 61R-162167 of the public Records of Dade County, Florida. The above described Alley being a westerly extension of that certain alley which was dedicated to the perpetual use of the public and shown on the "REVISED PLAT OF RE -SUBDIVISION OF PROPERTY IN NEB SECTION 21► T-54-S, R-41-E° recorded in Plat Book 35, at Rage 53 of the Public Records of Dade County# Florida, SZ--o'54'4— x y That eertain e11@y And t1#HtAdf"VhV J6eihl the north torn (101) feet of the foll6wing ddoetibed ptbporty, aituato, lying and being in the county 0f bad(! Arid State at • t"'lorida, to-witt ThAt pert of th6 &i of th0 REk Of Seetift At Tt�#ttfthip 54 Southt Rangd 41 East# more particulatly described dg follower Cetnmencinq et A�iMt do the South.line of -the above NEk 1505 feet west from Sdutheadt corner therdaft thence run North at right ahgies to tho said South lind 221 feett thoned run t;ast 25 feetp thence run South 221 foot to the aforesAid South lino f theme@ nest along the South line 25 feet.to the place of begin"ingt Excepting from the above described tract a strip 33 feet Vida off the South side thereof conveyed to the City of Coconut Grove, Florida, for street purposes by Quit -Claim Died dated June 21t 1924, recorded in Deed Book 431, Page 143, of the Publie Records of Dade County, Florida! which property, located at 3019 Grand Avenue, Miami, Florida, was acquired by ,defendant, Coconut Grove Camera, Inc., by virtue of a warranty Deed recorded March 11, 1976 in Official Records Book 9259, at Page 1010 of the Public Records of Dade County, Florida. The above described Ailey being a westerly extension of that certain alley which was dedicated to the perpetual use of the public and shown on the "REVISED PLAT OF RE -SUBDIVISION OF PROPERTY IN Nth SECTION 21, T-54-St R-41-E" recorded in Plat Book 35 at Page 53 of the Public Records of Dade County, Florida. 0 13 1-1 That pact of the Southwest quarter MAI of the Northeast quarter (Nth) of Section 21► Township 54 South, Range 41 Raot, being more particularly described -as f611owa: Commencing at a point on the South line of the NEk of Section 210 Township 94 South, Range 41 tastt which point is distant 1500 feet 'West from the Southeast corner of said M of Section 21t thence run. North and At Height angles to said South line 221 feet, which aaid South Ana is marked on the ground by a pipe set as in the cast line of the land conveyed to Arthur W. Sanders and Beverly peacock on April 300 19090 and recorded in Deed Book 480 page 145# of the public Records of Made County, Ploridg, and by bolts set in eeMant 33 feet, 211 feet and 221 feet North of said South linet thence run East parallel with the said South line a distance of 55 feet; thence run South and at right angles to said South line a distance of 221 feet to said South line of said Nth thence run west and along said South line of said Mg�a distance 6f 55 f6et to the place or point of beginningt ekeepting.theraltft the South 33 feet of the above described tract of land, which said South 33 feet have heretofore been given end deed for street purposes and also excepting the North 10 feet of the above described tract of land, which is hereby given for the use as a public alley. ALSO The following parcel of land lyin4 ift the Southwest Quarter (SA) of the Northeast Quarter (NElt)• of said Section 21 Township 54 South, Range 41.East,' and more particularly described as follows, to -wits Commencing at a point 1535 feet West and 33 feet North of the Southeast corner of the Northeast Cuhrtek (M) of Section 21, Township 54 South, Rangb 41 East, for a point of beginning; thence run North 63 feett thence Southeasterly 63 feet to a point 0.17 feet East of the point of beginnings thence West 0.17 feet to the point of beginning. AND LESS That certain parcel of land lying in the Southwest Quarter (Swh) of the Northeast Quarter (M) of Section 21, Township 54 South, Range 41 East, and being more particularly described as follows, to -wit: Commence at a point 1535 feet west and 96 feet North of the Southeast corner of the Northeast quarter (NEh) of Section 21, Township 54 South, Range 41 East, for a point of beginning of the tract hereinafter to be described, thence North 40.08 feet; thence West 0.03 feet; thence Southeasterly 40.08 feet to the point of beginning. WHICH PROPEAtl Located at 3031 - 3035 Grand Avenue;'Miamlp Florida, was acquired by Plaintiff, Grand Services, Inc., by virtue of a Warranty Deed recorded December 26, 1978 in official Records Book 10252 at Page 1696 of the Public Records of Dade County, Florida. 82-5,^+ gg r< E Y s s COUNTY OP DABB y 1 Before met the undersigned authority, personally appeared Albert Grubair who, after being duly sworn, states as follows: 1. That his name is Albert Grubair, and that he is the President and Owner of Coconut Grove Camera, Inc., a Florida corporation. 2. That Coconut Grove Camera, Inc., is, and has been for a period of years, the owner of real property located at 3015 Grand Avenue, Coconut Gxovef Forida 33133, the rear of uaid property being a 10-foot alley -wax which abuts the public alley -way which is approximately 216'North of the center line of Grand Avenue and intersects wit# Virginia Street. 3. That he and Coconut Grove Camera, Inc. is now, and has at all times been opposed to the closure of the aforesaid alley -way, which would cut off access to the rear of his property. 4. Anything indicated in the past inconsistent with this affidavit was done under pressure. FURTHER AFFIANT SAYETH NOT. i ALBERT GRUB IRS�:: SWORN TO AND SUBSCRIBED before me this �_1 a day of May, 1982. 4 N�TARtY PUBLIC - My Commission expires: � Notary Public, state of Florida of t.erge My Cummius(on Cxpirea July 9, 1984 Bonder tbru Maynard Bonding Agency -16 :1TY '.F irLdtlt 9A to: Honorable Maurice A, V6rtei Mayor? June 17, 1582 FlUZ: and Honorable MOMbets of the City Cotttt►ission '- ''' Alley Closure - podsaid Sub 00 6&!:� George V . Xnok, it. City Attorney Resolution 81=483 E:- cc This memorandum is to bring you up to date on subsequent Developments regarding the above alley closure that requires a reconsideration of the actions taken. Resolution No. 81-483 which was adopted May 28, 1981, closed, vacated, abandoned and discontinued a public alley west of Virginia Street between Oak Avenue and Grand Avenue as a con- dition of Tentative Plat No. 1098-A-"Podsaid Sub". The Plat has not been approved, and the alley therefore remains open. It is now apparent that the City cannot Close the alley, in accordance with applicable law and the City Code, because of the objections of a property owner holding an interest in property abutting the public alley. Limited history of this matter, and recommendation, follows: 1. On November 3rd, 1980, the Zoning Board recommended denial of the application for closure of the subject alley- way because of the opposition of abutting property owners. The application was not passed on to the City Commission at that time because City Code (Section 54-4) prohibits closure of such an alley without the consent of all holders of property interests which border upon or abut the alley to be vacated. 2. On March 11, 1981, the applicants reapplied for vacation and closure of the same public alley, less the westernmost one inch (111) thereof, in an attempt to remove the obstacle of the opposing abutting property owners, by eliminating the abutting status by one inch. The Zoning Board recommended denial of this second application. 3. Thereafter, applicants appeared to obtain the consent of one of two objecting property owners, and proceeded to the Commission for the Resolution vacating the alley. Although there was still a property owner objecting, this property Honorable Mautido A, Ferret Mayor m2r- dune 17y 1982 and Honorable Members of the City Commission owner's rights to object and thereby prevent passage of the resolution, were based upon an asserted "prescriptive ease- ment" which abutted the public alley. A prescriptive ease= meat is a property right and interest which, if present, would have required the consent of the holder thereof for the vacation, closure and abandonment of an abutting public alley. The Commission, indicating that the prescriptive easement had not been "certified" or "verified" by the Circuit Court, passed the Resolution over the objections of the property owner asserting the right. 4. Subsequent to the passage of the Resolution vacating the alley as a condition of the aforesaid plat, the property owner asserting the prescriptive easement filed suit in the Dade County Circuit Court against the City alleging that said Resolution was an illegal act. This lawsuit is currently pending in the Third District Court of Appeal of Florida. 5. The objecting property owner also brought a lawsuit in the Dade County Circuit Court seeking an adjudication of its precriptive easement and, on May 13, 1982, the Court settled the question entering a Final Judgment Adjudicating Prescriptive Easements which expressly recognized that the objecting property owner did have a prescriptive easement (abutting the public alley), that the prescriptive easement had existed continuously since at least 1948, and that the easement was "a property right owned by Grand Services, Inc." (the objecting property owner). 6. Further, the other abutting property owner has renewed its initial objections to the closure of the alley, an affidavit to that effect having been furnished to the Law Department. RECOMMENDATION Resolution No. 81-483 should be rescinded, because closure of the alley pursuant to that Resolution would be a violation of the City Code, Section 54-4, which requires the consent of holders of all abutting property interests. Inasmuch as Resolution No. 81-483 was merely a condition of a plat which has not yet been approved, and the vacation and closure of the alley is not yet effective, the City has the opportunity to correct the situation at this time by passing the pending Resolution rescinding Resolution No. 81-483. GFK/TVP/wpc/1 82_1) �'.a