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Home My WebLink Aboutsubmission - correspondenceTEW • CARDENAS LLP ATTORNEYS AT LAW MIAMI • TALLAHASSEE • WASHINGTON DC February 26, 2004 The Honorable Mayor Manuel Diaz & City Commissioners City of Miami City Hall 3500 Pan American Drive Miami, Florida 33131 ,an1lag°o Echemendia WRITER'S DIRECT LINE: (305)536-8420 E-MAIL: SDE(a4,Tewlaw.com MIAMI CENTER, 26TH FLOOR 201 S. BISCAYNE BOULEVARD MIAMI, FLORIDA 33131-4336 T 305.536.1112 F 305.536.1116 WWW.TEWLAW. CO Re: Proposed Ordinance Amending Chapter 2, Article II, Section 2-33, Requiring Unanimous Concurrence of All Commissioners for Action Pertaining to Rescue Missions Dear Mayor Diaz & Commissioners: This law firm represents Charity Unlimited of Florida, Inc. ("Camillus House"). As a major provider of services to the homeless population of Miami, Camillus House will be severely and unfairly affected by the above -referenced proposed amendment. We urge the City to deny adoption of the proposed amendment, and ask that you consider some of the following critical issues and problems with its adoption, which include but are not limited to: 1. Procedural Challenge: Legislative vs. Quasi Judicial. The City is attempting to define its passage of this ordinance as legislative activity. Even under this standard, the actions of the City are not fairly debatable. Without any support in the record, the City passed an ordinance that singles out rescue missions (and Camillus House) to require them to obtain a unanimous vote on land use matters, where the City has no other super -majority or unanimous voting requirements for any other zoning approval. As such, the City's actions in passing this ordinance are arbitrary and capricious. Because the City is well aware of the required public hearing application from Camillus House in order to operate its proposed site, the City's actions, under the pretense of legislative action. improperly decide a quasi-judicial matter. With the knowledge that one Commissioner opposes the potential placement of a Camillus House facility, the Commission passed legislation that requires that Commissioner's vote for approval of the application —in effect, denying the application before it even has been submitted, much less reviewed on its own merits. The City is attempting to circumvent the safeguards and standards under a quasi-judicial review and preempt the quasi- TEW CARDENAS REBAK KELLOGG LEHMAN DEMARIA SUBMITTED INTO THE TA G�U+E I�Y OCD t L2 C�`CNT 1 \ D FOR r 1 cRA Mayor Manuel Diaz & City Commissioners February 26, 2004 Page 2 judicial process. Under a quasi-judicial review, the City is required to provide procedural and substantive due process, which is being pre-empted by this ordinance. Moreover, there is absolutely nothing in the record, either in the January 22, 2004 proceedings or at this proceeding that would support the City's denial of the prospective use by Camillus House under the existing zoning regulations. The City cannot do indirectly what it would not be able to do directly—i.e., reject the Camillus House application without any findings of substantial competent evidence to support the denial and without providing Camillus House with due process. 2. Substantive Challenges to City's Ordinance. a. Equal Protection. Fundamentally, "equal protection" provides that parties that are similarly situated may not be treated differently. Generally, where no fundamental right or suspect class is involved,' a plaintiff must show that he was treated differently than other similarly situated persons and that the regulation is not rationally related to a legitimate government purpose. See BFI Waste Systems of North America v. Dekalb County, Case No. 1:02-CV-0922-RWS, 2004 WL 116540 (N.D. Ga. January 16, 2004). Under these standards, the City is treating Camillus House disparately. First, in singling out rescue missions in enacting this ordinance, the City is treating rescue missions differently than other similarly -situated uses, including congregate living facilities, nursing homes, etc. The City of Miami Zoning Code defines `'rescue mission" as a "facility which provides overnight, dormitory -style shelter (with or without food service provisions) to those persons lacking residences, possessions or resources." The Zoning Code's definition of "Community based residential facility," includes, among other things, adult congregate living facilities, as well as "residential facilities for alcohol and drug rehabilitation and juvenile and adult residential correctional facilities, including halfway houses..." Both "rescue missions" and "Community based residential facilities" provide housing and services to multiple unrelated persons. In singling out rescue missions for disparate zoning requirements, the City is treating rescue missions differently than other similar residential and services facilities and violating the rights of owners of existing or potential rescue missions. In addition, although the ordinance on its face does not appear to single out Camillus House 'The homeless are not considered a suspect class for scrutiny regarding equal protection. See Joel v. City of Orlando, 232 F.3d 1353, 1357 (11th Cir. 2000); D'Aguanno v. Gallagher, 50 F.3d 877, 879 n. 2 (1 1 `h Cir. 1995); Kreimer v. Bureau of Police for the Town of Morristown, 958 F.2d 1242, 1269 n. 36 (3d Cir.). As such, analysis of whether equal protection has been violated in this case is under a much more lenient standard of scrutiny. Mayor Manuel Diaz & City Commissioners February 26, 2004 Page 3 for disparate treatment, in their discussion of the ordinance on First Reading, the City Commissioners mentioned specifically Camillus House and the fact that this legislation would affect a potential application by Camillus House regarding the proposed location. (incorporate by reference the testimony at the January 22, 2004 City Commission meeting regarding this issue). Thus, Camillus House has been targeted separately from other rescue missions that are not in the process of seeking land use approvals, in violation of Camillus House's due process rights. b. Florida Religious Freedom Restoration Act, Section 761.03, Florida Statutes ("FRFRA"). The proposed ordinance, as it would apply to Camillus House, violates the Florida Religious Freedom Restoration Act of 1998. Section 761.03, Florida Statues ("FRFRA"). Camillus House is a registered religious non-profit organization under Section 501(c)(3) of the Internal Revenue Code and operates with the general purpose "to foster religious and charitable activities, including, but not limited to, providing shelter and services especially designed to meet the physical, social and psychological needs of the homeless..." As such, Camillus House and its work are protected under FRFRA, which provides that a government "may not substantially burden a person's exercise of religion, even if the burden results from a rule of general applicability, except... only if it demonstrates that the application of the burden: (a) Is in furtherance of a compelling governmental interest; and (b) Is the least restrictive means of furthering that compelling governmental interest," The requirement that a unanimous vote must occur before any land use approvals may he granted for Camillus House to undertake its work meets the standard for a substantial burden —in fact, the requirement for unanimity is not only a burden, as applied it will act as a complete moratorium on any action to be taken by Camillus House. See Abbott v. City of Fort Lauderdale, 783 So. 2d 1213 (Fla. 4'h DCA 2001) (applying FRFRA to feeding program on Fort Lauderdale beach and finding local ordinance preventing use of parks for social service purposes "unless authorized pursuant to a written agreement with the City" violated FRFRA). The City cannot articulate a "compelling governmental interest" in requiring a unanimous vote on these matters. Even were the City to argue that passing an ordinance that relates to rescue missions and addressing issues involving homeless persons is a compelling government interest, the fact that the City is requiring a unanimous vote for any land use activity is certainly not the "least restrictive means" of addressing the issue of homelessness. Mayor Manuel Diaz & City Commissioners February 26, 2004 Page 4 c. Religious Land Use and Institutionalized Persons Act, 42 U.S.C. § 2000 ("RLUIPA"). The City's requirement of a unanimous approval of any land use regulations governing any new Camillus House facility substantially burden Camillus House's right to exercise religion and perform of its religious works, in violation of the Religious Land Use and Institutionalized Persons Act. 42 U.S.C. § 2000 ("RLUIPA"). Similar to the FRFRA. RLUIPA is federal legislation that provides that a government may not substantially burden a person's exercise of religion unless it is in furtherance of a compelling government interest and is the least restrictive means of furthering that interest.' In Westchester Dav School v. Village of Mamaroneck, 280 F. Supp. 2d 230, 234 (S.D.N.Y. 2003), RLUIPA was applied to proposed modifications to a structure by a religious day school. The Court found that the city's denial of the proposed modifications was a substantial burden on the day school's exercise of religion because the proposed modifications to the structure would enable the day school "for well into the foreseeable future, to more efficiently, effectively and, most importantly, safely serve its student population and to fulfill its religious and educational mission." Id., 280 F. Supp. 2d at 243. In this case, the proposed new site for Camillus House would permit Camillus House to fulfill its religious mission to continue its service to the community. d. Fair Housing Act, 42 U.S.C. § 3601, et seq. Finally, the proposed ordinance violates the Fair Housing Act, 42 U.S.C. § 3601, et seq. Pursuant to the Fair Housing Act, a municipality may not make housing unavailable to any buyer because of a handicap or "refuse to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling." A large majority of the potential residents of the Camillus House rescue mission have a serious physical or mental impairment that prevents these persons from maintaining employment, obtaining education or securing permanent housing. The City's ordinance violates the Fair Housing Act because it would create an impediment to these handicapped persons finding accommodations —in fact, the City's ordinance would create a disproportionately unequal opportunity for these impaired persons to find housing because it would act as a virtual moratorium on any rescue missions being constructed. The City would not be making "reasonable accommodations" to assist these impaired persons to find house. but rather would be making it more difficult for them to do so, in clear violation of the Fair Housing Act. Sec Turning Point, Inc. v. City 'However, this act has a more narrow application than FRFRA and applies only where: (1) there is federally -funded activity, (2) the substantial burden affects interstate commerce or (3) in land use cases, where the state is making individualized assessments regarding the property involved. See Westchester Day School v. Village of Mamaroneck. 280 F. Supp. 2d 230, 234 (S.D.N.Y. 2003). Mayor Manuel Diaz & City Commissioners February 26, 2004 Page 5 of Caldwell, 74 F.3d 941, 945 (9i1' Cir. 1996) (finding violation of Fair Housing Act in municipal ordinance requiring annual review of special use permit for homeless shelter and setting arbitrary limit on number of occupants of shelter). Based on the foregoing, we submit that the proposed ordinance should not be adopted and urge the City to deny its adoption. Sincerely, Santiago D. Echemendia cc: Chairman Art Teele Commissioner Angel Gonzalez Commissioner Tomas Regalado Commmissioner Joe Sanchez Commissioner Johnny Winton ::ODNIA\MI-IODMA\MIAM139g89g:1