HomeMy WebLinkAboutlegal opinionCITY OF MIAMI
CITY ATTORNEY'S OFFICE
MEMORANDUM
TO: Members of the City Commission
FROM: 4.. Alejandro Vilarello, City Attorne
DATE: March 24, 2004
RE:
Request for Legal Opinion: Parking and F.A.R. Calculations for Special Permit
pursuant to Zoning Ordinance; Tower at Grand Bay, 2675 South Bayshore Drive;
City Commission Meeting of March 25, 2004, Agenda Item PZ-2; City Commission
Meeting of February 26, 2004, Agenda Item PZ-5
This is in response to your request for a legal opinion wherein you asked, substantially, the
following:
1. WHETHER THE ACCESSORY USE CALCULATIONS
UTILIZED BY STAFF IN DETERMINING THE PARKING
REQUIREMENTS FOR THE PROPOSED TOWER AT
GRAND BAY'S SPECIAL PERMITS WERE PROPERLY
DETERMINED?
2. WHETHER THE FLOOR AREA RATIOS (FAR) UTILIZED
BY PLANNING STAFF IN DETERMINING THE
PARKING REQUIREMENTS FOR THE PROPOSED
TOWER AT GRAND BAY'S SPECIAL PERMITS WERE
PROPERLY DETERMINED?
Discussion
The answer to both questions is in the affirmative. At the core of the challenges to
zoning compliances posed by Counsel for the Appellant in the subject proceedings is the
application of three methods of calculation utilized by the Planning Department in arriving at the
parking requirements for the referenced Tower at Grand Bay ("Project"). They are: (1) Method
of Floor Area Ratio (FAR) calculation; (2) Method for parking calculation; and (3) Ability to
provide shared parking facilities within a site.
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Legal Opinion/ Request for Legal Opinion; Parking and F.A.R. Calculations pursuant to
Zoning Ordinance; Tower at Grand Bay
March 24, 2004
Page 2
The gist of the Appellant's argument in opposition to the subject Special Permits clearly
rests on the premise that the existing Grand Bay Hotel is a "nonresidential" use, thus, not entitled
to the Zoning Interpretations, Planning Determinations and resultant calculations that utilized a
"residential" classification for the Hotel as the basis for calculating the Floor Area Ratio (FAR)
and parking requirements for the referenced Grand Bay Tower.
The Comprehensive Plan and Section 904 of the Zoning Ordinance vests the Planning
Director with the authority to make "determinations" concerning characteristics of uses not
specifically identified in the Zoning Ordinance. Section 1200 of the Zoning Ordinance vests the
Zoning Administrator with the authority to "interpret" the Zoning Ordinance. The record of the
subject proceedings is replete with assertions by the Planning Director and the Zoning
Administrator that the calculations and conclusions reached in the issuance of all Class I and
Class II Special Permits ("Special Permits") for the referenced project were based on their
opinion that all "hotels," including the existing Grand Bay Hotel on the site of the subject
project, are "residential" in character and considered as such under current City regulations
governing zoning and land use matters.
Upon review, this Office agrees that "hotels" were rationally classified by staff as
"residential" uses under Ordinance No. 10544, the Miami Comprehensive Neighborhood Plan
1989-2000, as amended ("Comprehensive Plan"), and Ordinance No. 11000, as amended, the
Zoning Ordinance of the City of Miami ("Zoning Ordinance"). Thus, we have concluded, as will
be discussed, that there is no merit to the Appellant's contentions that the Planning Department's
FAR and Parking calculations for the referenced Project are "illegal."
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Legal Opinion/ Request for Legal Opinion; Parking and F.A.R. Calculations pursuant to
Zoning Ordinance; Tower at Grand Bay
March 24, 2004
Page 3
The subject Project is to be located in Coconut Grove on a parcel of property designated
as "O-Office" under the Comprehensive Plan. It is zoned 0-Office with a SD-17 South Bayshore
Drive Overlay District and a SD-19 Designated Overlay District.
The Comprehensive Plan is the City's "Constitution" for all future development. See,
Martin County v. Yusem, 690 So.2d 1288 (Fla. 1997). All land use regulations must be consistent
with the Comprehensive Plan. See, §163.3194(1), Fla. Stat. (2003). The Goals, Objectives and
Policies section of the City's Comprehensive Plan state the following in provisions pertaining to
the "Interpretation of the Future Land Use Plan Map," which reflect the Comprehensive Plan
designations for all land within the City of Miami:
The future Land Use Plan map is a planning instrument designed to
guide the future development of the . City in a manner that is
consistent with the goals, objectives and policies of the Miami
comprehensive Neighborhood Plan. Land development regulations
and policies are to be consistent with the Future Land use Plan
map.... The consistency of existing zoning regulations and proposed
changes in zoning regulations (subsequent to adoption of the
comprehensive plan) with the Future Land Use Plan map is to be
determined by the Planning Director of the City of Miami.... The
designated land use categories which appear in the Future Land Use
Plan Map are to be interpreted as follows:
Office: This land use category accommodates general office uses
related to health services, professional services, and real estate,
banking and other financial services. Residential uses, up to high
density multifamily, including hotels, are also permissible within
this land use category ... (Emphasis Added).
The Zoning Ordinance does not specifically define hotels as "residential" or
nonresidential in character, but strongly implies, in a manner that supports the Zoning Director
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Legal Opinion/ Request for Legal Opinion; Parking and F.A.R. Calculations pursuant to
Zoning Ordinance; Tower at Grand Bay
March 24, 2004
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and Zoning Administrator opinions, that "hotels" are residential in zoning character. Section
903.4 of the Zoning Ordinance provides that:
For the purposes of density calculation, hotel and motel rooms shall
be considered as equivalent to one-half (0.50) of a dwelling unit.
Section 906.7.4 of the Zoning Ordinance also draws a strong nexus between hotels and "dwelling
units." Dwelling units are clearly depicted as "residential" in character through a series of
definitions in the Zoning Ordinance, not the least of which is the definition of "dwelling unit"
which essentially categorizes it as a living facility for a family. See Section 2502, Zoning
Ordinance.
Read together, the aforementioned provisions of the Comprehensive Plan and the Zoning
Ordinance support the use of a "Residential" zoning classification for hotels in the absence of
any specific provision to the contrary.
Having concluded that "residential" is, indeed, a proper zoning classification for the
Hotel, the only questions that remain would be whether the actual calculations were based on
methodologies authorized under the Zoning Ordinance for making calculations for FAR and
determining requisite parking in a "residential" facility. Attached, hereto, as "EXHIBIT A," is a
chart that graphically sets forth the applicable calculation methodology used by the Planning
Department in making the calculations objected to by Appellants. Said Exhibit sets out pertinent
provisions of the Zoning Ordinance and "ordinary language" dictionary definitions when clarity
is necessary, and clearly addresses, point -by -point, the calculations made, and the authority for
such calculations for a residential facility in an 0-Office zoning district. See, Mandlestam v._City
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Legal Opinion/ Request for Legal Opinion; Parking and F.A.R. Calculations pursuant to
Zoning Ordinance; Tower at Grand Bay
March 24, 2004
Page 5
Commission of South Miami, 539 So.2d 1139 (Fla.3'i DCA 1988) (holding that words not defined
in a zoning ordinance should be interpreted in accordance with normal dictionary meaning).
Additionally, the accessory use calculations and floor area ratios are addressed and
specifically identified in the Zoning Ordinance under the provisions of the underlying
"residential" use. The Exhibit also substantiates the Planning Department's underlying basis for
its calculations for deductions and credits for Residential uses.
Conclusion
As a consequence of the foregoing, this Office is of the opinion that the Planning Director
and the Zoning Administrator properly determined the parking and FAR requirements for the
pending Tower of Grand Bay's Special Permits. Said decisions were based on an initial
determination that a "hotel" use is characterized and classified as "residential" under applicable
land use and zoning regulation of the City of Miami. Thus, the calculation methodologies based
on such a designation, as shown on the attached Exhibit, in arriving at all parking and FAR
requirements for the subject Special Permits, as well as other approvals and recommendations for
the Tower of Grand Bay Project, were also proper.
Attachments
c: Mayor Manuel A. Diaz
Joe Arriola, City Manager
Priscilla A. Thompson, City Clerk
Alicia Cuervo Schreiber, Chief of Neighborhood Services
Ana Gelabert-Sanchez, Director Planning and Zoning Department
Lourdes Slazyk, Assistant Director, Planning and Zoning Department
Francisco Garcia, Zoning Administrator
Anthony J. O'Donnell, Jr., Esq.
Stephen J. Helfman, Esq.
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The following definition is provided by Zoning Ordinance 11000.
1. METHOD FOR GROSS LOT AREA (GLA) CALCULATION.
Ordinance 11000, Section 2505. Specific Definitions.
Lot area, gross.
The net area of the lot, as defined herein, plus half of adjoining street rights -of -way and
seventy (70) feet of any other public open space such as parks, lakes, rivers, bays, public
transit right-of-wav and the like. For areas included in applicable Special Districts (SD-5,
6, 7, 10, 11, 14, 16), the gross lot area shall include net area of the lot plus half of
adjoining street rights -of -way and ninety (90) feet of any other public open space such as
parks, lakes, rivers, bays, public transit right-of-way and the like. In both cases, where
such space adjoins lots on two (2) adjacent sides, the area thus added shall include the
area required to complete the gap otherwise left at the intersection
The following definitions are provided by The American Heritage® Dictionary of the
English Language (Fourth Edition. 2000):
Adjoining:
Sharing an edge or boundary; touching. 2. Neighboring; adjacent. 3a. Connecting without
a break: the 48 contiguous states. b. Connected in time; uninterrupted: served two
contiguous terms in office.
Adjacent:
Close to; lying near: adjacent cities. 2. Next to; adjoining: adjacent garden plots.
The method of calculation for properties with adjoining / adjacent parks has traditionally
been as follows:
Begin with Net lot area as specified in survey (excluding dedications)
Plus Half of adjoining street rights -of -way (to the centerline)
Plus
Seventy (70) feet or ninety (90) feet (as applicable) of open space into the
park directly in front of the property by extending the side property lines
perpendicularly across the right of way. This calculation begins at the
centerline if the open space is not immediately abutting the property but
across the street instead.
Total Gross lot area
2. METHOD OF FLOOR AREA CALCULATION
Ordinance 11000, Section 2505. Specific Definitions.
Exhibit A (Emphasis Added).
Gross floor area
Gross floor area shall be the floor area within the inside perimeter of the outside walls of
the building with no deduction for hallways, stairs, closets, thickness of interior walls,
columns or other features. Where the term "area" is used in this ordinance, it shall be
understood to be gross area unless otherwise specified. In theaters, assembly halls and
similar occupancies, balconies, galleries, stages and mezzanine floors which are not
enclosed shall be considered as adding to the floor area.
Floor area, residential.
The sum of areas for residential use on all floors of buildings, measured from the outside
faces of the exterior walls or windows, including interior and exterior halls, lobbies,
enclosed porches and private enclosed balconies and floor areas below floodplain.
Not countable as residential floor area are:
(a) Open terraces, patios, atriums, or balconies
(b) Carports, garages, breezeways, tool sheds
(c) Special purpose areas for common use of occupants, such as recreation rooms or
social halls;
(d) Staff space for therapy or examination in group care housing
(e) Basement space not used for living accommodations
(f) Stairways, elevator shafts or mechanical rooms; or
(g) Any commercial or other nonresidential space
Accessory uses and other spaces intended as amenities such as pool area, ballrooms,
meeting rooms, balconies, etc. are excluded from floor area calculation as provided for in
the definition above.
The reason for this is that they do not generate additional parking demand since the hotel
rooms, which accommodate the hotel guests who will be making use of the ancillary
facilities, have already accounted for the parking demand.
However, principal uses such as gymnasiums, spas, restaurants, etc. intended to attract
patrons who are not hotel guests must provide parking, as required by the specific use.
In the case of the subject project ballrooms and other amenities intended for the exclusive
use of hotel guests are not counted but a restaurant, which caters to customers outside the
hotel and has a separate entrance has been required to provide parking at the rate of 1
space per one hundred (100) square feet.
b
3. METHOD FOR PARKING CALCULATION
ORDINANCE 11000, SECTION 401 SCHEDULE OF DISTRICT
REGULATIONS, 0 — OFFICE DISTRICT, OFFSTREET PARKING
REQUIREMENTS,
Offices and other nonresidential uses:
One (1) space per three hundred fifty (350) square feet of gross floor area.
Lodgings:
One (1) space per every two (2) lodging units.
Multifamily residential uses:
One (1) space for each efficiency/one-bedroom unit.
Two (2) spaces for each two -bedroom unit or each three -bedroom unit.
Three (3) spaces for each unit with more than three (3) bedrooms.
In addition, one (1) space for every ten (10) units or portion thereof designated for
visitors.
Adult care:
One (1) offstreet parking space shall be required for the owner/operator and one (1) space
for each employee. In addition to providing offstreet parking, such establishments shall
provide safe and convenient facilities for loading and unloading clients including one (1)
unloading space for every ten (10) clients cared for.
Childcare:
One (1) space for the owner/operator and one (1) space for each employee. In addition to
providing offstreet parking, such establishments shall provide safe and convenient
facilities for loading and unloading children including one (1) unloading space for every
ten (10) children cared for.
Convalescent homes, nursing homes, institutions for the aged or infirm and orphanages:
One (1) space for each five (5) beds, plus one (1) space for each doctor in regular
attendance, plus one (1) space for each three (3) employees or volunteers on peak shifts.
Places of worship, primary and secondary schools: As for G/I.
For places of worship, a reduction of up to twenty-five (25) percent in required offstreet
parking shall be permissible by Special Exception, when such facilities are located within
1000 feet of a mass transit station or mass transit stop. No other parking reduction may
be used in conjunction with this provision.
Each of the parking ratios listed above is intended to apply to the category under which it
appears.
The parking ratios listed in the zoning ordinance go with the use and if the use of a space
is changed, the parking requirement of the use it changes to must be provided prior to the
approval of the requisite certificate of use.
The parking requirement for a hotel or any other type of lodging is one (1) space for
every two (2) lodging units as set forth above.
c
4. ABILITY TO PROVIDE SHARED PARKING FACILITIES WITHIN A SITE
Parking for any use must be provided on -site except where otherwise allowed and
pursuant to the methods allowed. Within the SD-17 South Bayshore Drive Overlay
District east of SW 27th Avenue, parking may be provided by the following methods: 1)
Anywhere on -site, 2) up to 25% off -site by Special Exception and 4) payment in lieu of
parking is allowed as set forth in Section 617.5. (Please see below). Variances for
parking are not permitted.
Ordinance 11000, Section 617.5 (1.)
Upon application to the planning director, the owner of a property for which offstreet
parking is required, but which parking the owner is unable to provide onsite, may request
a waiver of any or all of the required spaces by substituting the payment of a fee per
space in lieu of providing the required parking spaces.
d