HomeMy WebLinkAboutItem #24 - Discussion Item•J Joseph R. Grassie
City Manager
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im •Re�Di r- ector
Planning Department
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July 2, 1980
Agenda Item
City Commission Meeting:July 10,'f —
Apartment Zoning
Attached, for the information of the Commission, is a legal opinion
from George F. Knox, Jr., City Attorney, dated March 28, 1980 stat-
ing that a zoning classification for rental units only is prohibited
under Florida statutes.
Also attached is a report Summary of Rental/Multi-Family Housing
Study", April 25, 1980, prepared by the Planning Department. This
report finds that:
there is considerable opportunity for additional
residential development under existing zoning;
that studies now underway, if implemented, would
provide for additional residential development;
that enactment of the proposed new zoning ordinance
would encourage multi -family development.
This report concludes with the following recommendations as next
steps:
consider support for additional regulation of condo-
minium conversion to protect renters;
review and adopt plans for upzoning now underway;
adopt zoning changes subsequent to plan adoption
step above;
support and utilize Federal, State and County programs
designed to increase the supply of rental units;
support study of several areas with strong development
potential to produce the best development strategy,
Joseph R. Grassie
City Manager
Page 2
July 2, 1980
the Edgewater Area west of Biscayne
Boulevard from NE 17th Terrace to
NE 36th Street; and
the 50-acre FEC switch yards east of
North Miami Avenue to the railroad
tracks from NE 29th Street to NE
36th Street.
Pttachments
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ON, 40W
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SUMIARY OF RENTAL AIULTI -FAMILY HOUSING STUDY
CITY OF MIAMI PLANNING DEPARTMENT
April 25, 1980
The Miami City Commission has:
expressed concern regarding the loss of rental
housing units through conversion to condominiums;
requested an inquiry into the possibility of
creating a special zoning district for multi -family
rental housing only;
requested an analysis of the need for additional
multi -family zoning including the identification
of areas where such zoning should occur.
General Observations Regarding Operation of the Housing Market
land is only one of the major factors in the cost
of new housing production but it is escalating
rapidly in strong market areas;
land currently zoned for single family and duplex
use could be rezoned for multi -family use and not
result in reduced land costs which could be passed
on to housing consumers;
the City has numerous housing sub -markets each re-
quiring special strategies to stimulate new con-
struction and conserve existing housing resources;
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rising housing costs will prevent most of Miami's
population from purchasing new housing units thus
affecting the demand for rental units;
return on investment from rental apartments is being
reduced by increasing O/M costs, lagging rents and
Federal tax policies regarding depreciation.
Specific Findings
1. in recent years 'Miami has had a significant rate of
housing production;
2. some cities in other states have enacted local condo
conversion regulations to assist renters;
3. although zonin solely for rental units is not legal
there are other approaches to stimulate the production
of rental units;
4. there is considerable opportunity for residential
development and redevelopment tinder existing zoning;
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5. numerous studies now underway, if carried out,
provide zoning for an additional 8812 residential
units;
6. enactment of the new zoning ordinance would en-
courage development of multi -family units;
More data on the specific findings follows:
1. In recent years Miami has had a significant rate of
housing production;
from 1970-1975 10,000 new units were added
to the Miami housing stock;
from 1975-1979 building permits were issued
for 7678 units as follows:
S.F. and Duplex M.F. And Other
1975 373 790
1976 489 534
1977 543 516
1978 595 719
1979 504 1.258
2. Some cities in other states have enacted local condo
conversion regulations to assist renters:
these ordinances have provisions which regu-
late the time between notice and the actual
conversion of the unit;
give existing; tenants the right of first refusal
during the sale of units;
require the private convertor to pay relocation
costs for the tenants;
require the convertor to assist the tenants in
finding new rental housing;
require that 100 of the units to be converted
be set aside for low and moderate income
f.vnilies;
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3. Although zoning solely for rental units is not
lecal there are other approaches to stimulate
the production of rental units.
tax increment financing could be used in
redevelopment areas to lower production
costs through land write -downs, and then man-
date seme rental units under land disposition
agreements;
new Federal programs could be enacted, e.g.
provide incentives for rental housing;
a new State housing finance agency could assist
in the financing/production of rental housing;
the County housing finance agency can currently
aid rental projects that also assist moderate
income families;
the new County Housing Bond Program can finance
the cost of duplexes for moderate income fam-
ilies and the second unit could be rented.
4. There is considerable opportunity for residential
development and redevelopment under existing zoning.
a 1975 land use survey compared with existing
zoning indicated "capacity" for 81,000 units
over the current development level of 135,000
existing units;
this "capacity" must be adjusted downward to
reflect land assembly problems adjacent to areas
of "overdevelopment" and currently weak market
demand.
Area of significant opportunity for new units under
existing zoning include:
remaining; R-5 and R-3B lots on Brickell
between 15th Road and 28th Road;
the Edgewater Area;
portions of the Little Havana/Lummus Park Area;
Overtown;
Claug;hton Island;
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Northeast ".1iami west of I-95;
the Civic Center Area;
part of Coconut Grove.
5. Numerous studies now underway, if carried out,
provide zoning for an additional 8812 residential
units.
Vizcaya Transit Station 255
Coconut Grove Transit 160
Station
Brickell Transit Station MXD 1800
Areas North & South of 1500
Transit Station
Douglas Road Transit Station 411
New Washington Heights 520
Transit Station
ri
Allpattah Transit Station 58
Biscayne Boulevard North 650
Civic Center Secondary 458
Development Area
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Park West - New -Town -In -Town 3000
8— b12
6. Enactment of the new zoning ordinance would encourage
development of multi -family units.
the proposed land use intensity for regulating
zoning is consistent with and derived from
Federal standards regulating multi -family
development;
the new zoning ordinance eliminates unit size
regulations replacing them with FRA minimum
units standards providing developers maximum
flexibility to respond to market;
assuming minimum unit size,130 units
per acre could be provided rather
than the current 98 units;
encourages planned area development;
more flexible parking requirements.
Next steps:
.,.,n..i..,,r s..ppo.t for additional r..n.zl: i„n of
condo conversion to protect renters;
review and adopt plans for upzoning now underway;
adopt zoning changes subsequent to plan adoption
step above;
support and utilize Federal, State and County
programs designed to increase the supply of
rental units;
support study of several areas with strong
development potential to produce the best
development strategy, specifically:
the Edgewater Area west of Biscayne
Boulevard from NE 17th Terrace to
NE 36th Street; and
the 50-acre FEC switch yards oast of
North Aliami Avenue to the railroad
tracks from NE 29th Street to NE
36th Street.
/r
• f
to Honorable Members of
the City Commi.
rrtoM [g;e F. Knox, Jr..
'' Attotfie
city of M ',PAO• rLonioA
INTER -OFFICE MEMOPANQ 4 Cr• t�ll ;'�� ; l ';'�I��G U��i
":I 12. �, 3
DA/F March 28, 1980 11111,c MIA- 80. ].
I': 9.11„ A 1139
St Is.)* CI
Establishment of Zoning;
Classification for Rental
Itf ! F1t I:NCf$ Properties
u
Pursuant to your request for a legal opinion regarding:
IMETFIF.R A NEVI 'ZONING CLASSIFICATION CAN BE ESTARLISHF,D
FOR MUTIL-FAMILY HIGH -DENSITY UNITS TO Br UShD FX-
CLUSIVF.LY FOR RENTAL PURPOSES?
The answer to the above grtestion is in the negative. While research
indicated no cases directly deciding this issue in Florida, there are Statutory
provisions which prohibit such a classification.
Ordinnnces dealing; with zoning are construed and applied with reference
to the nature and use of the property and not with the form of ownership. A
new zoning; classification which prohibited ownership of multi -family units
on a condominium basis or cooperative basis and required that they be used ex-
clusively for rental units would be in conflict with Florida statutory provisions,.
Florida Statutes Section 713.507 deals with building and zoning ordinances in
regards to condominium ownership and IFlorida Statutes Section 719.507 deals
with building; and zoning ordinances in regards to cooperative. ownership.
Section 719.507 of the Florida Statutes reads as follows:
All law,;, ordinances, and regulations concerning buildings
or zoning shall he construed and applied with reference to the
nature and use of such property. without regard to the fonts
of ownership. No lma, ordinance, or regal-ltion shall establish
any requirement concerning; the use. location. placement, or
cour,truction of hnilding% or other improvements which are, or
may thereafter hc, nitbjectod to the condominium form of owner-
shiP, unless such recluirvmvnt shall he equally applicable to
all buildings and improvements of the same kind not then or
thereafter to be, subjected to the condominium form of owner-
shLp.
Section 719.507 of the Florida Statutes is exactly the same, except the
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lion. Members of the City Commission
Palle two
word "cooperative" appears instead of "condominium".
March 23, 1980
These sections prohibit property owned as condominium or cooperative from
being classified in a separate category concerning use, location, placement or
construction. A zoning ordinance therefore cannot be enacted which would have
condominium ownership versus rental units as the basis for establishing a use
category.
While not dealing directly with the issue posed in this question, there
is a case arising in the Third District Court of Appeal which is highly
relevant to our consideration. In City of Miami Reach v. Arlen }wing; Cole
Condominium Association, Inc., 302 So.2d 777 (Fla. 3rd DCA 1977), the Court
considered whether a nonconforming use because of insufficient off-street
parking was abandoned when an apartment hotel was changed to a condominium.
The Court in holding: that there was not an abandonment of the nonconforming
use under the zoning ordinances stated:
A nonconforming, use relates to the property and lint to the
tvne of ownership of the property. liners v. Board of Adjust-
ment of Township of Wavni-, 75 N. .1. Super. 405, 183 A.2d 130;
bridle Park Co. v. Rornurh of 111-10and Park, 113 N.3. Super. 214
A.2d 397; Maplewood Villa,-,v Tenants Us'n .,. Maplewood Village,
116 N.J. Super. 372 A.2d 423. Ch:ing;ini; tbe. type of ownership of
real estate upon w'llich a nonconformin); use is located will not
destroy a valid existing nonconforming use. (e.s. at 774).
The authorities relled upon in this case by the Third District address the
question raised in the context of what constitutes a "use". In Bridge Park
Co. v. Borough of llis;liland Park, 273 A.2d 397 (N.J. App.Mv. 1971) the
Appellate Division of the Superior Court of New .J.-rscy held that re);ulation
of ownership of property or the types of tonancios permitted, was beyond the
zoning; power of a municipal corporation. In an action for declaratory judgment
by the owners of garden apartmcntti who sought to convert their property to
condominiums the Court stated:
". the word "uso" as cuntainod in the statnLe above, does not
rofor to ownership but to ph�sicnl n•;e of lands and hnildines.
A building is not "uo-;ed" as it C0141011inium for purposes of "Lolling.
(e.s. at 39(+).
Therofore, after tilt. ch,ln►;o of ownership fr(,m apartments to condominiums
the same building; will he on tho Fame premix;es and the itse will remain the
same.
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lion. Member; of the City Commiswion Page three March 28, 1990
In Maplewood Villar,e Tenants Association v. Maplewnod Village, 116 N.J.
Super. 3721, 262 A.2d 42'; (N.J. Chancery Div.), another New Jersey Court con-
sidered the question of whether it would be necessary in the process of con-
version of an apartment house into a condominium to obtain approval under a town -
stilt) 20t1inS' ordinance err," i ri ng1 g�-ibd i v i sion approval. N.J.".,%. -116: 311-29 reach
very similar to the Florida Statute and states in part that:
All laws, ordinances and regulations concerning planning,
subdivision or zoning; shall be construed and applied with
reference to the nature and use of the condominium without
regard to the form of ownership.
The Court in Maplewood went on to hold that:
The presently existing; apartments conform to the township
zoning ordinance, and the proposed conversion represents
nothing; more than a change in the form of ownership. The
use of the land will not be affected. Planning; controls,
including suhdivision approval cannot be employed by a
municipality to exclude condominiums or discriminate against
the condominium form of ownership, for it is use rather than
form of ownership that is the proper concern and focus of
zoning and planning regulation.
Research indicates that another jurisdiction has reached a similar
conclusion concerning; "use." and the classification of condominiums. In
Kaufman and Board, Inc. v. Board of Supervisors, 340 A.2d 909 (Pa. Cmwlth.
1975), the Commonwealth Court of Pennsylvania held that "condominiums are
not uses but are merely a method of expressing; realty ownership" and that
"if a use is permitted, the municipality cannot regulate the manner of
ownership of the legal estate."
Therefore, after consideration of the above mentioned authorities along
with the statutory provisions of Section 713.507 and 719.507, Florida Statutes,
it is my opinion that ender tile. pre,ent law it would not he po>:sihle for the
City to establish a new zoning classification to be limited to rental units
only.
GFK,.1r./J1iA/wpc
cc: Jim avid, Director
Plannin., boparu,ient
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