HomeMy WebLinkAboutSubmittal-Commissioner Sarnoff 5MARC D. SARNOFF
COMMISSIONER - DISTRICT 2
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3500 PAN AMERICAN DRIVE
MIAMI, FLORIDA 33133
305 250-5333 _
FAX 305 579-3334
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PUBLIC RECORD FOR
ITEMON 9-1-o9 .
This Communication is not Intended to Solicit a Response!'.
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September 1, 2009
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To: Mr. Chair and Fellow Commissioners
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Re: Miami 21
In this most unusual of economic times, we are all concerned about and
wish to avoid exposing the City's coffers to claims under the Bert Harris Act
or any other provision of law. As Miami 21 has evolved over the many
months, this has been a constant concern for our staff, consultants and each
of us as elected officials ultimately responsible for the welfare of our citizens
and the City of Miami as a whole. The addition of reasonable height
limitations along Biscayne Boulevard and Coral Way has done nothing to
increase our exposure to any claims under the Bert Harris Act or other
provisions of law. '
When this matter was raised at a recent hearing on Miami 21, it
caused me to go back and review this matter anew to ensure that I was not
overlooking something. Here's a summary of what we've found
1 The City Attorney has advised pursuant to the Attorney General's Opinion AGO
2001-21 there is no violation of Sunshine Law for Commissioner to prepare and circulate
their own position paper to afford discussion and debate at the scheduled hearing on
September 4, 2009.
City of Miami Commissioners
September 1, 2009
Page 2 of 9
Bilzen Sumberg has argued Miami 21 requires "its clients" to pay
f"millions of dollars"} for public benefits to obtain height and density —
presently achievable under Zoning Code 11000. Bilzin has warned the
Commission Miami 21 will result in millions of dollars in Bert Harris claims
for the cost of acquiring the heights and density that it perceives to enjoy
under Zoning Code 11000.
The requirement to purchase public benefits to gain height and density
is/has been a main feature of Miami 21 since its inception. Thus, any new
concerns are merely concerns that should have existed since the inception of
Miami 21. District 2 as a matter of policy has determined that significant
height adjacent to neighborhoods are not in the best interests of the
residential neighborhood. How high is too high is a fair debate by the
Commission — debating the facts and policy versus unsubstantiated fears. I
suspect that is why there are five Commissioners, needing three to create
law.
The height reductions and Transfer Development Rights afforded
under District 2's plan will eliminate the peculation stagnation found over
the past decade on the Boulevard. This is an important City of Miami
Historic District that exists on an FDOT related "F'21 Roadway. The added
density and often intensity of T5 or T621 planned for sections of this historic
road will only cause a collapse in a system that has seen its mass transit
funding diverted by the County.
The claims by owners, speculators or developers that Bert Harris'
claims or constitutional taking claims are forthcoming is legal posturing by
attorneys who represent clients who's basis in the property far exceeds its
value, and according to the Kiplinger Report of August 7, 2009, will remain
depressed for 15-20 years. Fear should never govern our actions. Well
thought out debate and policy decisions should prevail as a governing body
based on fact and historic merit.
A point of intellectual honesty is necessary. Whether the alleged
`inordinate burden' argument from Bert Harris or a Constitutional Taking
argument, these claims are unsubstantiated over the 14 -year history of the
Bert Harris Act, and are in reality mere legal posturing and threats by land
speculators and developers who are finding property values are 25% of their
basis in the property.
2 "F" is the lowest rating Fl) OT provides to an arterial that is clogged with traffic.
3 Which can produce a building of 100 -ft. to 120 -ft. adjacent to residential
neighborhoods.
i Submitted into the public 2
record in connection with
item SPA, SP.2 & SP.3 on 09-04-09
Priscilla A. Thompson
City Clerk
City of Miami Commissioners
September 1, 2009
Page 3 of 9
H. Law
The mere purchase of land without more does not create a right to rely
on existing zoning. City of Miami Beach v. 8701 Collins Avenue, Inc., 77
So.2d 428 (Fla. 1954), cited with approval in Monroe County v. Ambrose, 866
So.2d 707 (Fla. 3d DCA 2003). A subjective expectation that land can be
developed is no more than an expectancy and does not translate into a vested
right to develop the property, Namon v. Dept. Environmental Reg., 558 So.2d
504 (Fla. 3d DCA 1990). If the landowner did not start development prior to
the enactment of these land regulations, they acted at their own peril in
relying on the absence of zoning ordinances changes. It would be
inconceivable to allow the landowners to ignore evolving and existing land
use regulations under circumstances when they have not taken any steps in
the furtherance of developing their land. Shands v. Marathon City Council,
999 So.2d 718 (Fla. 3d DCA 2009). In Shands, the court's determination that
no facial taking occurred, was in part the City of Marathon's granting of
Transfer Development Rights ["TDR's"]`I to effected property owners,
refuting the owner's claim that he has been denied all or a substantial
portion of the beneficial use of the property.
A. The Bert Harris Act
Bert Harris Act was enacted in 1995 and creates a cause of action for a
property owner who is aggrieved by 'a government action that "inordinately
burdens" the owner's property. §70.001 F1a.Stat.(1995). The Bert Harris
Act provides statutory relief that is supplemental, but independent from
constitutional "takings" protection. §70.001, Fla. Stat. (2009). The Act does
not grant property owners significantly more rights than they currently enjoy
under the Constitution. The Act provides in pertinent part:
"When a specific action of a governmental entity has
inordinately burdened an existing use of real property or a
vested right to a specific use of real property, the property owner
of that real property is entitled to relief, which may include
compensation for the actual loss to the fair market value of the
real property caused by the action of the government...."
§70.001(2), Fla. Stat. (2009).
See Ch. 107, City of Marathon Code Ordinances (2007).
Submitted into the public 3
record in connection with
item SP.1 SP.2 & SP.3 on' Q9-04-0. I
Priscilla A. Thompson .
City Clerk
City of Miami Commissioners
September 1, 2009
Page 4 of 9
1. Inordinate Burden -51
The Bert Harris Act defines inordinate burden as:
"a[n] action of one or more governmental entities [that] has
directly restricted or limited the use of real property such that
the property owner is permanently unable to attain the
reasonable, investment -backed expectation for the existing use of
the real property or a vested right to a specific use of the real
property with respect to the real property as a whole, or that the
property owners are left with existing or vested uses that are
unreasonable such that the property owner bears permanently a
disproportionate share of a burden imposed for the good the
public, which in fairness should be borne by the public at large."
Fla. Stat.§70.001(3)(e)[emphasis added].
Local government action to "down -zone" or "down plan" a particular
area, or reduce height limits, is the most difficult element for a landowner to
prove that he or she was "inordinately burdened" by such a decision to down -
zone. Regulatory actions have been upheld against takings claims even
where they dramatically diminished the value of the property, including
impacts potentially as great as 95%. Susan Trevarthen, Advising the Client
Regarding Protection of Property Rights: Harris Act and Inverse
Condemnation Claims, 78 Fla. B.J.61, 61 (2004); see Hadacheck v. Sebastian,
239 U.S. 394 (1915)( 90% reduction of value, not a taking); Graham v.
Estuary Properties, 399 So.2d 1374 (Fla. 1981) at 1382. (75% reduction of
value not a taking); Penn Central Co. v. New York City, 438 U.S. 104 (1978)
at 124.
In Florida, so long as the approved zoning allows some economically
viable use,. a landowner is not entitled to more favorable or economically
valuable zoning. Lee County v. Morales, 557 So.2d 652, 655 (Fla. 2d DCA
1990), rev.den., 564 So.2d 1086 (Fla. 1990), where the Court rejected a
takings claim against a "down -zoning" because the resulting densities were
economically viable and the reductions were not made arbitrarily, but for
valid planning reasons.
2. Existing or Vested Uses
5 The Bert Harris/Taking portion of this memorandum was drafted in part by
Everglades Law Center, Inc., "Defending Florida's Ecosystem and Community," as well as
the City Attorney for the City of Miami in previous legal briefs and LSR's concerning Bert
Harris claims, which all Commissioners should be privy to.
Submitted into the public 4
record in connection with
item SPA, SP.2 & SP.3 on 09-04-09
Priscilla A. Thompson
City Clerk
City of Miami Commissioners
September 1, 2009
Page 5 of 9
Under Federal and State taking's law, the scope of the court's inquiry
into whether a landowner has "reasonable, investment backed expectations,"
is to see if the landowner has actually taken specific, concrete steps in
investing in and developing his or her property. See Penn central
Transportation, 438 U.S. at 124; Grahain, 399 So.2d at 1380; Namon v. Der,
558 So.2d 504 (Fla. 3d DCA 1990). A subjective expectation that the land
could be developed us not sufficient. See Namon at 505. Speculating by the
mere purchase of property without undergoing the process of development is
not a reasonable investment backed expectation and does not create a right
under a taking or Bert Harris claim.
We are experiencing unprecedented loss of value of real estate in
Miami. The Kiplinger Report has just projected the California, Arizona and
Florida markets will not see a return to pre -recession levels for 15-20 yearsfil.
We are now defining the new "normal"; expectations formed three years ago
are no longer valid. If there ever was a time to face the threat of lawyers that
there will be a legal challenge — now is that time. Property values thought to
be marketable at $350-$500 per square foot are now facing $100 to $125 per
square foot sales2l.
Under the Bert Harris Act, the property owner would have to further
prove that he or she has an "existing use" which is inordinately burdened by
the down -zoning decision. Such a use must either be a lawful present use or
reasonably foreseeable, nonspeculative future use which is suitable for the
property that is compatible with adjacent land uses and which have created
an existing fair market value in the property. §70.001(3)(b), Fla. Stat.
Alternatively, a landowner could be entitled to relief if a "vested right"
is inordinately burdened. However, in order to establish a vested right, the
landowner would have to prove that. its due process rights were violated or
the landowner made a substantial change in position or incurred substantial
obligations or expenses and relied in good faith on some act or omission of the
local government, such that it would be unjust to deprive the landowner of
his interest in developing his or her property in a manner now prohibited by
the down -zoning. See §70.001(3)(a), Fla. Stat. (applying the principles of
equitable estoppel or substantive due process to determine the existence of a
vested right.) As you know, M-21 has unprecedented levels of protection for
G A copy of the August 7, 2009 Kiplinger Report is attached; loss of 45% of value for
California, Arizona and Florida, the bottom has not been found.
s Significantly below the cost of construction, this bottom may be challenged by the
bankruptcy of the Everglades in downtown. If you recall in 2007, District 2 predicted sales of
$125 to $150 per square foot in Miami.
Submitted into the public 5
record in connection with
item SPA, SP -2 & SP.3 on 09-04-09
Priscilla A. Thompson
City Clerk
City of Miami Commissioners
September 1, 2009
Page 6of9
establishing and protecting vested rights for those developers who made
efforts at developing their land (under Zoning Code 11000), commencing the
process of procuring permits, prior to the protracted intended enactment of
Miami 21.
State property rights law does not guarantee a landowner the
maximum densities or intensities permitted by a local comprehensive plan or
zoning code. Brevard County v. Snyder, 627 So.2d 469 (Fla. 1993). Many
comprehensive plans have explicit policies describing how maximum
densities are not guaranteed and establish ceilings — not floors or
entitlements — and are subject to consistency with all provisions of the Plan
or Code, including those related to issues such as neighborhood compatibility,
and height and other intensity restrictions. The City of Miami's Zoning Code
11000 at Section 2301 clearly provides these regulations are maximums, not
entitlements.
3. Bearing a Disproportionate Share of the Public Burden
The courts have chastised the City of Miami Beach for finding property
rights where none exist. In The Chisholm Properties v. City of Miami Beach,
8 FL.L.Weekly Supp. 689 (Fla. 111h Cir.Ct. August 9, 2001). The Ritz Carlton
Hotel filed an application for a 15 story addition to its beachfront property.
Before the application had been approved, a zoning regulation was passed
that prohibited new additions in the historic district taller than 5 stories.
The Ritz subsequently filed three actions against the City, one of which was a
Harris Act claim. Before these three cases were decided, the Ritz and City
entered into a settlement agreement whereby the City stipulated that it
would recommend in favor of voting for the variances needed by the Ritz.
The Ritz then sought its necessary variances from the Board of Adjustment,
which approved them under threat that the denial of these rights would
subject the city to Bert Harris Act liability.
A third party — Chisolm Properties — then challenged the Board of
Adjustment's decision to grant variances. While that suit was pending, the
Ritz and the City entered into another settlement agreement where the City
agreed to grant the same two variances in order to settle the Bert Harris Act
claim.
The Circuit Court ruled that the City had violated its ordinances in
granting the variances and that the settlement agreement under the Harris
Act did not justify the violation because (1) the granting of the variances did
not protect the public interest served by the zoning restriction, and (2) the
Submitted into the public 6
record in connection with
item SPA, SP -2 & SP -3 on 09-04-09 j
Priscilla A. Thompson
— - -- - -`City Clerk _ - ---
City of Miami Commissioners
September 1, 2009
Page 7 of 9
variances were not necessary to prevent the governmental regulatory effort
from inordinately burdening the real property.
The court found the argument that the settlement of the Bert Harris
Act claim was necessary simply to allow a local government to avoid a
pending Harris Act lawsuit, was "an illogical application" of the statute that
rendered the Act meaningless. The Ritz's inability to build during the
pendency of the appeal of the underlying variance approval did not rise to the
level of "necessary" as meant under the Act. In fact, the court found that this
settlement was entered into for the mere purpose of taking away the court's
jurisdiction to review the legality of the variance approvals.
The Ritz appealed to the Third District Court of Appeal, which
unanimously denied the appeal. A concurring opinion by Judge Fletcher
went so far as to describe the variances as "totally unjustified and illegal" and
referred to the settlement agreement as a "sweetheart settlement" of a
"spurious action" by the hotel owner against the city, Citv of Miami Beach v.
Chisholm Properties, 830 So.2d 842 (Fla. 3d DCA 2002).- Judge Fletcher
suggested that the appeal was "so clearly - indeed at best — frivolous that
sanctions should be imposed" against Ritz and the City of Miami Beach.
The same appeals court has jurisdiction over the City of Miami and
thus, the opinion is binding authority. The opinion is a strong warning to
owners who might hope to force a local government into an ill-advised
financial settlement or developmental approval.
4. Whether the Height Limitation of Biscayne Boulevard
Property Invokes the Bert J. Harris Private Property Rights
Protection Act, F.S.§70.001 (2006)
The Commission has the discretion to reduce the height of a project
from the maximum height permitted by the zoning ordinance. There is no
entitlement as a matter of right to the maximum heights. The 4th DCA has
held it is appropriate to restrict the height of a project to make it compatible
with the existing adjacent neighborhood. Las Olas Tower Co. v. City of Ft.
Lauderdale, 742 So.2d 308, 313-314 (Fla. 41h DCA 1999). See also Battaglia
Properties v. Florida Land and Water Adjudicatory Commission, 629 So.2d
161 (Fla. 5th DCA 1993)(recognizing that 35 feet is an appropriate height for
a development sited in a primarily residential neighborhood). As you know,
directly adjacent to the Boulevard are residential neighborhoods, and, while
you have demonstrated a policy in District 3 to erode height restrictions in
residential neighborhoods in favor of high rises, District 2 does not share that
Submitted into the public 7
1 record in connection with
item SPA, SP.2 & SP.3 on 09-04-09
Priscilla A. Thompson
City Clerk
City of Miami Commissioners
September 1, 2009
Page 8 of 9
vision. We simply have a difference of% policy regarding how height of
building affects the quality of life for neighborhoods.
Moreover, the plain statutory language establishing the maximum
height limitation of 95 feet in Section 609.8.1 makes clear that it is a
maximum and not a minimum entitlement under the City of Miami Zoning
Ordinance.
This maximum limitation does not grant developers carte blanche to
build to the maximum on every piece of property. Since a permit application
must satisfy all other relevant requirements of the zoning ordinance as well,
this Commission is entitled to determine, based on the evidence before it,
that in order to meet the requirements of Section 1305 of the Zoning
Ordinance, reduction in the height of buildings is a proper use of its zoning
designation. In. addition to the height limitations, building plans must
comply with all other zoning codes and restrictions, City Council of the Citv
of North Miami Beach v. Trebor Construction Corp., 277 So.2d 852 (Fla. 3d
DCA 1973). Furthermore, Article 23 §2301 of the Zoning Ordinance
specifically provides that: "In their interpretation and application, the
provisions of this zoning ordinance shall be held to minimum requirements or
maximum limitations, as the case may be, adopted for the promotion of the
public health, safety, morals or general welfare." The meaning of maximum
height restriction as defined in Ballentine's Law Dictionary, is "[a] limitation
in linear measurement or by a stated number of stories, placed upon the
height of buildings within a definite area by restrictive covenant." 20
Am.Jur. 2d Covenants §263 (2008). Additionally, the burden of proving
compliance with the Section 1305 design criteria standards rests with the
developer. In order for the developer's application to be approved, it [is]
necessary for the developer to demonstrate compliance with the new version
of Section 1305. Hernandez -Canton v. Miami City Commission, 971 So.2d
829 (Fla. 3d DCA 2007).
II. Conclusion
The Bert J. Harris Act has little or no practical applicability for
property owners. As of yet, no awards.have been sustained under any action
brought under this statuteEl. To be successful, a developer must prove a
governmental action that limits the use of real property so as to amount to a
permanent deprivation of any reasonable, investment -backed expectation for
the existing use or a vested right to a specific use. The establishment and
8 The Circuit Court was recently reversed for finding an inordinate burden. Citrus
County v. Halls River, 8 So.2d 413 (Fla. 5th DCA 2009).
Submitted into the public 8
record in connection with
item SP.1, SP.2 & SP.3 on 09-04-09
Priscilla A. Thompson
City Clerk
City of Miami Commissioners
September 1, 2009
Page 9 of 9
granting of transferrable development will help dislodge speculation,
stagnation and effectively stave -off any argument by the developer of
negative economic impact on the owners of lands who claim its development
rights are restricted or reduced.
To be clear, there is no legal justification to propose that any
Commissioner is against Miami' 21 due to the incorrect fear the City will face
"millions of dollars" in lawsuits. The establishment of Miami 21 is a policy
decision to be made by the Commission, the amendments are based upon
neighborhood compatibility, inadequate mass transportation (diminishing
under the County's new budget) to facilitate the apparent up zoning of some
properties in Miami 21, and consideration to historic areas deserving of our
protection. If any Commissioner disagrees with height limitations (achieved
though Chapter 23, not through the proposed Miami 21 Code), then the
Commissioner should champion the legal opinions of Bilzin Sumberg et al
and vote "No" to Miami 21.
If a height limit imposed on an existing Historic District draws the
objection of any Commissioner, then certainly that Commissioner would
oppose property owners having to pay a fee (public benefits) to achieve height
and density they currently claim to enjoy, a requirement of Miami 21 from its
inception,
Let's debate the facts, not the fears.
Yours
David S
910mmissioner-Disfrict 2
City of Miami
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