HomeMy WebLinkAboutMisc LettersANTHONY J. O'DONNELL, JR.
1.129 PALERMO AVENUE
CORAL GABLES, FLORIDA 33134
(305) 445-5727
TO: MR. FRANCISCO GARCIA
ZONING ADMINISTRATOR Fax: 305-416-1490
FROM: ANTHONY J. O'DONNELL, JR.
DATE: AUGUST 18, 2003
RE: TOWER AT GRAND BAY CLASS 1I PERMIT: IMPROPER FAILURE TO
INCLUDE NONRESIDENTIAL AREAS (RESTAURANT, BAR, BANQUET HALL)
IN CALCULATIONS FOR F.A.R. AND OFFSTREET PARKING
I have just learned that you have been appointed the new zoning administrator for
the City of Miami and that the applicant for the Tower at Grand Bay is now asserting that
the project does not need to count the massive nonresidential floor areas of the Hotel's Bice
restaurant, bar and banquet facilities for either F.A.R. or parking requirements. As we
have argued in our previous memoranda to the zoning administrator, the planning and
zoning director and the city attorney, there is no support in the Zoning Ordinance for this
unprecedented assertion.
1. Floor areas are divided between "residential" and "nonresidential" under the
Zoning Ordinance; just because the Bice restaurant, bar and banquet hall facilities are
located in a hotel which has "residential" hotel rooms does not convert these nonresidential
uses and their respective floor areas into residential uses to be excluded from the calculation
of gross floor area of the building. If that were the case, any restaurant, bar and banquet
hall facility of any size could avoid F.A.R. and offstreet parking requirements merely by
attaching themselves to a hotel or a condominium or a rental apartment building and then
claiming to be non -countable as "residential" floor space!
2. Section 906 expressly governs permitted restaurant uses in residential buildings
as "accessory convenience establishments" with very stringent controls, none of which are
met by the hotel's massive Bice restaurant/bar and banquet hall:
a. "primarily intended for the use of occupants of the principal use and their guests"
Sec. 906.7. (Bice is a widely advertised and popular restaurant and night spot)
b. "gross area shall not exceed an amount equal to fifteen (15) square feet for each
dwelling or lodging unit" Section 906.7.4. (177 rooms = 2,655 s.f. gross area).
c. "No signs or displays relating to such accessory convenience establishments shall
be visible outside the building" Section 906.7.6. (Bice signs on exterior of hotel).
d. "NO VARIANCES FROM THE PROVISIONS OF THIS SUBSECTION 906.7
ARE PERMITTED." Section 906.7.10. (Cannot meet Subsection 906.7).
e. "ALL SUCH ACCESSORY RESTAURANT USES IN EXISTENCE ON THE
ADOPTION OF THIS PARAGRAPH AND NOT COMPLYING WITH THE
TERMS OF THIS SUBSECTION ARE DEEMED NONCONFORMING USES."
Section 906.7.4. (Bice restaurant/bar/banquet facilities are nonconforming C-1 uses)
3. As nonconforming uses under Zoning Ordinance 11000, the Bice restaurant, bar
and banquet facilities cannot be expanded and, moreover, under Florida law the hotel itself
and its building site cannot be expanded until the nonconforming uses are eliminated.
ANTHONY J. O'DONNEL ., JR.
1129 PALERMO AVENUE
CORAL GABLES, FLORIRA 33134
(305) 445-5727 (305) 58g3t30
August 15, 2003
TO: Ms. Ana Gelabert-Sanchez, Director
Department of Planning and Zoning
Ms. Joyce McPhee, Zoning Administrator
Department of Planning and Zoning
Joel Maxwell, Esq., Assistant
City Attorney's Office
FROM: Anthony J. O'Donnell, Jr., Esq.
Attorney for The Tower Residences Condo Association,
Jeff Stewart and Other Residents
RE: Inclusion of "Non-residential floor area" in gross floor area calculations of Grand Bay
Hotel
The present zoning ordinance in no way excludes the floor areas of restaurant, bar
and banquet hall facilities when located in a hotel building. These floor areas are defined as
"nonresidential floor area" under Section 2502 of the Zoning Ordinance 11000 and these
areas must be included in calculations for several zoning restrictions:
1. F.A.R. calculations would include this "nonresidential floor area" as part of its
calculation of "gross floor area" Section 2502.
2. Offstreet parking calculations would include this "nonresidential floor area" and
require that such "Offstreet parking for restaurants shall be segregated from other parking
and reserved for restaurant patrons. Offstreet parking required for RESIDENTIAL USES
shall be reserved for such uses and SHALL NOT BE USED FOR RESTAURANT
PARKING except by occupants of the principal uses." Section 906.7.7.
3. Accessory use regulations would include this "nonresidential floor area" if the
restaurant, bar and banquet hall facilities could somehow be reduced and converted into
"accessory services" of the hotel, which obviously cannot be done (15 square feet per unit).
Section 906.7.4.
The Zoning Ordinance 11000 specifically addresses restaurant uses and restaurant
parking in a hotel setting and requires that offstreet parking be provided for this
"nonresidential floor area" not only with respect to the number of spaces, but also with
respect to the separation of these nonresidential parking spaces from the required hotel
spaces. Nowhere, is there a provision in the Zoning Ordinance which converts restaurant,
bar and banquet hall facilities into "residential floor areas" which in turn are somehow
excluded from all "gross floor area" calculations. These are all public nonresidential spaces
of a hotel, not private residential common areas of a condominium. The failure to mention
these large "nonresidential floor areas" in the filed plans and calculations for the Tower at
Grand Bay project and then to treat them as some kind of "residential floor area" not to be
calculated for either F.A.R. or off street parking simply cannot he justified by anything in
Zoning Ordinance 11000.
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What Zoning Ordinance 11000 did do, however, is make the restaurant, bar and
banquet hall uses into non -conforming uses under the 0, R-5 and SD-1.7 district regulations
which do not permit such restaurant uses. These uses are now permitted uses only in the
C-1 Restricted Commercial district, Section 401; and they are expressly denoted as being
uses "in addition" to those uses permitted in the subject property's 0-District. As
previously argued, no expansion of the hotel or use of its site for expansion can be permitted
due to the existing non -conforming uses at the property.
It is true that exclusions to "residential floor area" calculations now exclude such
"residential floor area" as the common area of the residents of a condominium or hotel; but
the current Zoning Ordinance 11000 in no way converts "nonresidential floor area" into
"residential floor area" simply because it is located in a hotel and might be utilized by
patrons of the hotel as well as by the public at large.
One can well envision the types of buildings that might be permitted if
restaurants, bars and banquet facilities are excluded from F.A.R. and
off street parking requirements merely by attaching themselves to a
hotel or condominium or rental apartment.
To: Ms. Ana Gelabert-Sanchez, Director
City of Miami Planning and Zoning Department
Ms. Joyce McFee, Zoning Administrator
City of Miami Planning and Zoning Department
Ms. Maria Nardi, UDRB Coordinator
City of Miami Planning and Zoning Boards
From: Anthony J. O'Donnell, Jr.
Attorney for The Tower Residences Condo Association,
Jeff Stewart and Other Residents
Re: Class II Special Permit No. 2003-0009 (The Tower at Grand Bay)
Date: July 1, 2003 (Supplementing June 18, 2003 and June 30, 2003 Memos)
The Tower Residences Condo Association, Jeff Stewart and other residents
of the Ritz Carlton condominium incorporate and reassert the points made in their
previously filed memorandum of law and other objections and further present the
following unresolved issues for resolution prior to a final decision by the Director
and Zoning Administrator on the above Class II Special Permit:
INADEQUATE APPLICATION FOR REVIEW
1. The lack of building permit files for the Grand Bay Hotel and the Grand
Bay Plaza offices first raised in February, 2003, has not been corrected. It is
impossible to verify calculations of floor area and to determine the "built" date of
these two projects without these public records being available for review.
2. The submitted documents made available from the special permit file for
the Tower project do not specify the amount and location of the Gross Lot Area
being included from Dinner Key park areas based upon (a) hotel frontage and (b)
remnant parcel frontage. The calculation of floor area permitted cannot not be
verified without this information.
3. The submitted documents made available from the special permit file for
the Tower project do not specify the floor area exclusions being shown as "non -
countable" for floor area calculations. One glaring example is the way in which the
restaurant and ballroom at the Hotel are being calculated; there is no authority to
exclude these areas, yet they do not appear on the submitted calculations. Hotel
areas open to the "public" are not "common areas" found in private residential
condominiums, and may not be excluded from the total floor area of the hotel. This
calculation and each area of the buildings need to be specified in order to determine
if the floor area total is correct. It is inconceivable that a hotel with a net lot area of
101,000 square feet and constructed with an FAR of 1.5 would result in a floor area
of only 104,000 square feet — where did the 50,000 square feet of floor area
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disappear? Virtually none of the hotel's non-residential space appears to be
included in the calculation.
4. The filed staff reports expressly incorporate the SD-17 intent provisions as
part of the analysis. The UDRB and staff should require adherence to each of these
provisions in the design evaluation — views, streetscapes, compatibility with
neighborhood, natural features and other aspect of residential living that are clearly
violated by the Tower project's scale, location and design.
5. The staff should likewise evaluate the project for what it is, a "phased
project" which would not be approved if presented at the outset of development.
The stepped back front of the hotel is obliterated; the side setbacks of the hotel on
the west have been obliterated; the uniform height and scale of the three adjoining
projects east of S.W. 27tb Avenue have been totally overwhelmed.
UNLAWFUL FLOOR AREA EXCLUSIONS AND EXPANSION
OF NON -CONFORMING USE
The Tower Project should be recommended for denial and the requested
special permit should be denied also for the following legal reasons:
1. The floor area of the restaurant and ballroom within the hotel have been
omitted from the applicant's calculations without legal basis and without informing
the City or the public that this is being done. Accordingly, the Tower violates the
permitted F.A.R. of 1.21 even if public park areas are illegally included in the gross
lot area of the site.
2. The off street parking spaces are woefully deficient in the Tower project
because no spaces are provided for the non-residential spaces of the restaurant,
ballroom and other non-residential spaces in the hotel building. Accordingly, the
project is unlawful as proposed.
3. The restaurant and ballroom uses are not permitted uses in the "0", "R 4"
or "SD-17" zoning districts and, accordingly, are NON -CONFORMING USES OF
THE HOTEL AS PRESENTLY ZONED. As a result, the hotel site cannot be used
as part of the Tower site because it would constitute an illegal expansion of a non-
conforming use under Florida law. The Tower must rely upon the remnant parcel
outside the hotel site for its gross lot area and its resulting FAR calculation.
4. The plans and calculations submitted by the applicant simply do not
present the accurate picture of the existing hotel uses and the proper calculations
for determining permissible floor area, required parking and non -conforming uses.
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UNLAWFUL EXPANSION OF NON -CONFORMING USE,
UNAUTHORIZED ACCESSORY USE AND IMPERMISSIBLE
EXCLUSION OF NONRESIDENTIAL RESTAURANT,
BAR/LOUNGE AND BALLROOM/BANQUET HALL FLOOR
AREAS FROM CALCULATION OF F.A.R. AND OFF STREET
PARKING REQUIREMENTS
This supplemental memorandum summarizes the Residents' legal objections
to the proposed Class II Special Permit as it relates to the restaurant, bar/lounge
and ballroom/banquet hall at the hotel.
A. The Operation of the Non -Conforming Uses Precludes Expansion or
Addition to the Hotel Site.
The restaurant, bar/lounge and ballroom/banquet hall uses are on two full
floors of the hotel. The restaurant is the "Bice" restaurant which is advertised and
operated as "Miami's premier Northern Italian restaurant" and "named a 2002
AAA Four Diamond Award winner for the first time." Bice is open to the public;
and neither it nor its bar/lounge and wine room is limited primarily to hotel guests.
Likewise, the ballroom/banquet hall is advertised and operated as an independent
facility in the hotel open to the public at large for dining, dancing, receptions and
parties of all sorts. Photos and excerpts from the internet public advertising for
these facilities are attached to show their magnitude and character as independent,
public spaces. Accordingly, none of these uses is an "accessory use" under Florida
law. City of Miami Beach v. Uchitel, 305 So.2d 281 (Fla. 3d DCA); and
International Co. v. City of Miami Beach, 90 So.2d 903 (Fla. 3d DCA 1956).
Under the present Zoning Ordinance, neither the restaurant, the bar/lounge
nor the ballroom/banquet hall is a permitted or conditional use in the applicable
"0", "R-4", or "SD-17" zoning districts. Such uses are only allowed as independent
permitted uses in the C-1 Restricted Commercial district (Section 401). In fact, the
Zoning Ordinance expressly provides that permitted C-1 uses include but are
distinguished from 0 permitted uses as follows:
"Same as for 0 district AND IN ADDITION:
5. Restaurants, tearooms, cafes, except drive-in" (Section 2502).
Insofar as these restaurant, bar/lounge and ballroom/banquet uses are lawful, they
are "non -conforming uses" under the Zoning Ordinance (Section 2502).
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Under Florida law none of these non -conforming uses nor any other use on the hotel
site itself may lawfully be expanded or added to as is being proposed by the Tower
project. See Dowd v. Monroe County, 557 So.2d 63 (Fla. 3d DCA 1990); and
Redington Shores v. Innocenti, 455 So.2d 642 (Fla. 2d DCA 1984). The Class II
Special Permit cannot overcome this legal limitation and, therefore, must be denied.
B. Even If The Restaurant, Bar/Lounge and Ballroom/Banquet Hall
Could Qualify As "Accessory Uses" Their Floor Areas Must Be Calculated As
Part Of The Gross Floor Area For Both F.A.R. and Off -Street Parking Purposes.
The restaurant, bar/lounge and ballroom/banquet hall do not come within
the Zoning Ordinance definition of "Hotel" which includes "dining room.,
restaurants, meeting rooms and recreational facilities" only as "accessory services"
to the hotel. (Section 2502). The Zoning Ordinance provides that such "accessory
convenience establishments" are "primarily intended for the use of occupants of the
principal use and their guests." (Section 906.7). Furthermore, the Zoning
Ordinance imposes specific limitations on these accessory uses which are limited to
"an amount equivalent to ten (10) percent of the gross floor area of principal uses."
(Section 906.7.2.1). Furthermore, the gross area of these hotel accessory uses are
limited as follows:
Where restaurants are accessory to residential uses,
gross area shall not exceed an amount equal to fifteen
(15) square feet for each dwelling or lodging unit and
the maximum number of seats shall be one (1) seat per
dwelling or lodging unit, but not more than three
hundred (300). These maximums include any waiting
lounge areas. Seating in waiting lounge areas shall not
exceed twenty (20) percent of total seating. (Section 906.7.4).
No such calculations for floor area or seating are even set forth in the Tower
project's Class II Special Permit application which does not even mention the
restaurant, bar/lounge and ballroom/banquet hall facilities, much less include them
for F.A.R. or off street parking calculations.
Even if these uses can be qualified as "accessory uses," their floor areas must
be calculated and included in the gross floor area of the hotel and, therefore, of the
proposed Tower project site. Compliance with both F.A.R. limitation and off-street
parking requirements must take these restaurant, bar/lounge and ballroom/banquet
hall areas into account. The "floor area" specified for these uses in the Zoning
Ordinance is by definition of the ordinance "gross floor area;" and the floor areas of
each of these uses comprise "nonresidential floor area" as that term is twice defined
by the Zoning Ordinance and there is no exclusion for any of these areas from non-
residential floor area calculations. (Section 2502).
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Significantly, the Zoning Ordinance specifically addresses restaurant
parking in a hotel setting by requiring that: "Offstreet parking for restaurants
shall be segregated from other parking and reserved for restaurant patrons.
Offstreet parking required for residential uses shall be reserved for such uses and
shall not be used for restaurant parking except by occupants of the principal uses."
(Section 906.7.7). Thus, the restaurant use must not only provide the required
parking for its use in addition to whatever is required for the hotel use, it must also
segregate that required parking from the required hotel parking. None of these
regulations have been addressed much less met by the Tower project application,
and none can be waived or overcome by the Class II Special Permit.
CONCLUSION
The proposed Tower project may not lawfully be approved for
four basic reasons under the Zoning Ordinance: (1) it unlawfully
incorporates non -adjoining and non -open space public park land area
as part of its site's gross lot area; (2) it unlawfully expands or adds to
uses on the hotel site where non -conforming restaurant, bar/lounge and
ballroom/banquet hall uses exist; (3) it fails to meet the accessory use
requirements for its restaurant, bar/lounge and ballroom/banquet hall
uses; and (4) it fails to include the floor areas of the restaurant,
bar/lounge and ballroom/banquet hall uses as part of its calculation of
gross floor area for purposes of calculating F.A.R. limitations and
parking requirements for the project. These items were not properly
presented to the Zoning Administrator by the documents submitted for
the Class II Special Permit. Accordingly, the Zoning Administrator
should reject the proposed project and the Director should deny the
special permit forthwith.
MEMORANDUM OF LAW IN OPPOSITION
TO THE TOWER AT GRAND BAY PROJECT
The Tower Residences Condo Association and Mr. Jeff Stewart, a resident of
the Ritz Carlton Condominium, as well as various other residents of the
condominium located at 3400 S.W. 27th Avenue (the "Residents"), submit this
memorandum of law in opposition to issuance of Class II Permit No. 2003-0009 for
the proposed project, "The Tower At Grand Bay" (the "Tower").
THE INTERESTS OF THE RESIDENTS
The Residents' condominium site is located directly across S.W. 27th Avenue
from the proposed Tower site which is situated between the condominium and the
shoreline of Biscayne Bay. Both sites are within the City's SD-17 Overlay zoning
district; however, the Residents acquired their property in reliance upon the more
stringent zoning restrictions imposed by SD-17 on properties, such as the Tower
site, located along South Bayshore Drive northeast of S.W. 27th Avenue. For these
Bayshore properties, the Floor Area Ratio (F.A.R.) under the SD-17 Overlay is
significantly reduced -- from 1.72 F.A.R. to 1.21 F.A.R. with corresponding
reductions in the mass and scale of future development. This scaled down land use
intensity is in keeping with the unique character of South Bayshore Drive and its
designation as a "scenic corridor" along Biscayne Bay (See Coconut Grove Planning
Study of 1997).
The Residents have a substantial interest in ensuring that the Tower
project's scale, design and impacts on local traffic and the character of their
neighborhood do not adversely affect the use, enjoyment and value of their homes.
The location of the proposed Tower, moreover, portends to cause the Residents
special injuries to their view corridors to Biscayne Bay which are not shared by
other citizens or property owners in the neighborhood and which are inconsistent
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with the SD-17 Overlay's intent to ensure "special setback and view corridor
requirements" along South Bayshore Drive. Section 617.1.
The Residents, therefore, have the requisite interest as "affected citizens" to
challenge the procedural defects of the special permit application, Save Brickell
Avenue v. City of Miami, 395 So.2d 246 (Fla. 3d DCA 1981) (citizen association is an
"affected citizen" with standing to challenge zoning procedural defects); including
the absence of legal criteria necessary to grant a special permit. See Save Brickell
Avenue v. City of Miami, 426 So.2d 1100 (Fla. 3d DCA 1983) (association standing
to challenge criteria of PAD ordinance); and Allapattah Community Assn. v. City of
Miami, 379 So.2d 387 (Fla. 3d DCA 1980) (residents/association standing to
challenge zoning action's substantial relation to public interest).
The Residents also have the requisite "legally recognizable interest" as
owners in maintaining the character their neighborhood to challenge the substantive
reasonableness and legality of the Tower special permit application. See
Carlos Estates, Inc. v. Dade County, 426 So.2d 1167,1169 (Fla. 3d DCA 1983); and
Renard v. Dade County, 261 S.2d 832, 837 (Fla. 1972). Such challenges include the
misapplication of the City's Zoning Ordinance in the process of reviewing and
approving a special permit. See Raley v. City of Miami, 5 Fla. Law Weekly Supp.
583a (llth Judicial Circuit 1998); and Tibor Hollo v. City of Miami, 6 Fla. Law
Weekly Supp. 390 (11th Judicial Circuit 1999).
I. UNLAWFUL UTILIZATION OF PUBLIC PARK
LAND AREA TO INCREASE GROSS LOT AREA
AND DEVELOPMENT AT THE TOWER SITE
The proposed special permit purports to incorporate land area from the
public park at Dinner Key into the gross lot area for the Tower's building site.
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Specifically, a 70-feet deep strip of park land located across South Bayshore Drive
from the existing Grand Bay Hotel and the proposed Tower At Grand Bay is being
added to the net lot area of the project and to the adjoining one-half right of way
areas of S.W. 276 Avenue and South Bayshore Drive. The sum total of these land
areas — net lot area +'V2 right-of-way areas + 70 feet wide public park area — is being
utilized as the "gross lot area" for the Tower site. This inclusion of public park as
part of the Tower's private gross lot area dramatically increases the total floor
area allowed under the SD-17's 1.21 F.A.R. for the site; and this dramatic increase
in total floor area in turn results in a correspondingly dramatic increase in height
and lot coverage for the Tower project. Public park land is thereby being proposed
to be converted into private development rights — without any compensation to the
public and with a significant adverse impact on the character of the South Bayshore
Drive scenic corridor and on the open space and bay views of the Residents.
A. Unlawful Rezoning Of Public Park Land Area
The proposed utilization of public park lands for calculating privately owned
gross lot area and corresponding development rights amounts to a de facto rezoning
of public park land from its present PR —Park and Recreation zoning district to the
O-0fficelSD-17 Overlay zoning district of the Tower site across the street. The two
fundamental constraints of a zoning district are the TYPE OF USE allowed and the
INTENSITY OF USE allowed. The utilization of the Dinner Key park land area,
zoned PR, as part of the Tower site, zoned 0/ SD-17, changes BOTH the type of use
and the intensity of use for that PR zoned land; it results in a de facto rezoning for
that land from PR to 0/SD-17. Such a de facto rezoning is not and cannot lawfully
be authorized under the zoning ordinance as it eompletely obliterates the entire
concept of zoning district boundaries and the distribution of land uses and land use
intensities governed by those boundaries. See Bird -Kendall Homeowners Ass'''. v.
Metropolitan Dade County Bd. of County Commissioners, 695 So.2d 908 (Fla. 3d
DCA 1997).
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The proposed combination of public park land and privately owned land for
gross lot area is essentially the same as combining two different zoning districts on
the same site. In that case, however, the Zoning Ordinance expressly requires that
the entire site be developed pursuant to the restrictions of the "less intense district"
Sec. 903.1, Zoning Ordinance. Accordingly, the entire Tower site would need to be
used for public park and recreation purposes and at the restricted land use
intensities applicable to the PR zoning district. In the present case, by contrast,
public park land is being accorded a private, permanent high -density residential use
and an SD-17 F.A.R. land use intensity of 1.21 without any regard to the land's less
intense land use designation and zoning restrictions. Id.
The proposed inclusion of public park land as part of private gross lot area is
not the same as the inclusion of one-half the adjoining public rights of way (S.W.
27th Avenue and South Bayshore Drive) in computing total gross lot area. First,
under Florida law a private property owner normally extends its fee ownership of
adjoining dedicated public rights of way to the centerline of the street.
Accordingly, when the public easement over an adjoining public street is vacated,
fee ownership reverts to the adjoining properties on either side of the street and the
property can thereafter be used for private purposes free of the public easement. In
addition, the Zoning Ordinance of the City of Miami expressly extends the
boundaries of its zoning districts to the centerline of adjoining public streets. And
in the event a street is vacated, the zoning district "boundary shall be construed as
remaining in its location ..." at the centerline of the street. See Sec. 303.1 and
303.2.2, Zoning Ordinance. Under these circumstances, where both an ownership
interest and an express zoning district boundary extend into one-half of an
adjoining public right of way, utilization of this land area by the adjoining owner
for the same purposes already authorized by its zoning designation is both
reasonable and lawfuL
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By sharp contrast, the proposed Tower site would reach beyond the
boundaries of both its ownership interest and its zoning district to convert public
park land for its own private uses and profit and to do so with a land use and at a
land use intensity not authorized by the PR zoning district itself. The conversion
requires no public park or recreation use for the incorporated F.A.R.; and the
conversion essentially doubles the permitted F.A.R. of the property's PR land use
designation from 0.65 F.A.R. to 1.21 F.A.R. Even if the City had enacted a transfer
of development rights ordinance, which it has not done, the development rights
obtained from the transfer parcel (the park) could not be changed or increased, as is
being proposed by the Tower project, without a rezoning first.
Finally, there is no reciprocal reduction of F.A.R. for the public park land
area. There is no recorded, legally enforceable agreement that the land area would
be utilized only for "open space" or that the total floor area allowed for Dinner Key
would be reduced by the amount of additional floor area incorporated into the
Tower site. What today might be seen as "open space" tomorrow might well be an
expansion of the Dinner Key auditorium or a parking garage using the unchanged
F.A.R. of Dinner Key under its PR zoning. There is, therefore, no rational relation
to a public interest in using an ephemeral or non-existent "open space" from a
public park to enlarge permanent residential condominiums across the street for the
exclusive use and sole benefit of private interests.
B. Unlawful Misapplication Of The Terms "Adjoining" And
"Open Space" To Developable Park Property Across The Street
1. The Plain Language of the Definition of Gross Lot Area Excludes Areas
Separated by a Public Street and Not Restricted to Open Space.
The Tower project incorporates only "adjoining" public park land area at
Dinner Key into the gross lot area calculation for the site. As argued above, this
conversion and use of public park land area for private development purposes and
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for changing and intensifying land use is an unlawful de facto rezoning. Equally
important, the inclusion of public park land area as part of the Tower project is
based upon a tortured misreading and unauthorized misapplication of the terms
"adjoining" and "open space" as used in the definition of "gross lot area."
Accordingly, even if in certain cases adjoining public open spaces might lawfully be
utilized for a site's zoning calculations, the Tower project does not have such areas
available for its computation of gross lot area.
First, the Dinner Key park area across South Bayshore Drive is not
"adjoining" the Tower project. Section 2502 defines gross lot area as follows:
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-way and the like....
The definition of gross lot area begins with the "net area of the lot" which includes
only "The total area WITHIN THE LOT LINES excluding any street rights -of -way
or other required dedications." Section 2502, "Lot area, net" (emphasis added).
Added to this net area of the lot are specified portions of "ADJOINING street
rights -of way and ... other public open space such as parks, ..." (emphasis added).
The limiting term "adjoining" clearly means public streets and parks which adjoin
the "lot lines" of the "net area of the lot". The planned Tower project, however,
proposes not only to augment its net lot area by adding half the adjoining street
rights -of -way of South Bayshore Drive and S.W. 27th Avenue but also to include an
additional seventy (70) feet wide expanse of the public park land area of Dinner Key
located across the street from the project.
No reasonable reading of the Zoning Ordinance would support this inclusion.
The first basic component of gross lot area is the net lot area of the site bounded by
its lot lines. The second component of gross lot area is half the street rights -of -way
which adjoin the lot lines. The third component is comprised of adjoining public
open spaces — that is, "OTHER" than the street rights -of -way of South Bayshore
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Drive and S.W. 27th Avenue — which might also adjoin the net lot area's lot lines.
The remaining half of the two streets already utilized (Bayshore and S.W. 27th
Avenue) would not be "other" open spaces to be added to the first half of those
rights -of -way; nor would these remaining half rights -of -way be "adjoining" to any
lot line of the site. Likewise, the public park land area of Dinner Key is not
"adjoining" any lot line of the site. Equally important, the park area at Dinner Key
does not even meet the definition of "open space" because none of it is "set aside,
dedicated, designated or reserved" for open space as contemplated by the definition
of "open space" in the Zoning Ordinance. Section 2502, "Open Space".
Accordingly, the proposed Tower project improperly includes these public park
land areas — which are neither "adjoining" nor "open space" -- in calculating its
private gross lot area.
Under the express provisions of the Zoning Ordinance, the gross lot area for
the Tower project is properly calculated as follows:
1. Net lot area, plus
2. Half the right-of-way of S.W. 27th Avenue adjoining the net lot, plus
3. Half the right-of-way of South Bayshore Drive adjoining the net lot.
The total floor area for the Tower project would in turn be calculated as this gross
lot area multiplied by the property's 1.21 Floor Area Ratio (F.A.R.). However, the
gross lot area of the Tower project has been miscalculated by adding public park
lands that are not adjoining the site. As a result, the total floor area and the overall
mass, scale and height of the project far exceed the limitations contemplated by the
SD-17 Overlay district along South Bayshore Drive between S. W. 27th Avenue and
Aviation Avenue.
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2. The Use of "Adjoining" Elsewhere in the Zoning Ordinance Confirms That
It Does Not Include Properties Separated by a Public Street.
The interpretation of "adjoining" to include park land located across South
Bayshore Drive from the Tower project is not supported by the use of the term
throughout the Zoning Ordinance. Even a cursory review of the ordinance, reveals
that the term "adjoining" does not include properties located across public streets.
Section 2502's definition of "gross lot area" itself distinguishes where "space adjoins
lots" from where the sides of those lots are "adjacent" to each other and expressly
states how the intervening space is to be treated. Similarly, provisions governing
"Accessory Uses and Structures" expressly reference "the front line of a lot
adjoining a street," Section 607.5.2.1; and "Permitted accessory uses and
structures" are restricted for any "lot adjoining a pedestrian street.." Section 602.5,
In none of these instances, does the term "adjoining" include areas separated by a
public street.
So too, the regulatory language governing "Piers, docks, wharves, dockage,
boathouses, and boat slips" refers to the "application by owners of adjoining
properties," the "separation from adjoining properties" and "portions of property
adjoining such districts." Section 924.1.1 and .1.2. Similarly, provisions of the
Zoning Ordinance governing covenants in lieu of unity of title specify easements "in
favor of each adjoining parcel," Section 910.7 (vii) and (ix); and other zoning
r`egu]ations ai!ow construccti' m of a driveway within a lot's setback area only "where
owners of adjoining properties provide joint access." Section 908.10.1(b). Finally,
the zoning regulations address situations where "uses on.adj sinhig lots propose to
combine parking facilities, including accessways." Section 917.9.
In all of the above instances, "adjoining" is used by the Zoning Ordinance so
as not to include properties separated by a public thoroughfare. Indeed, where the
City's earlier zoning ordinance intended to include such properties, it expressly did
so. For example in the definition of "YARDS" in the district regulations of the
9
Residential-Office—R-C District, a former zoning ordinance authorized a limited
yard area credit from public park open space in the following circumstances:
"Where a lot abuts a public park ... or is SEPARATED FROM SUCH PUBLIC
OPEN SPACE ONLY BYA PUBLIC STREET .... "Art. XI, Section 3 (4) YARDS,
Zoning Ordinance No. 6871.
This language which expressly includes park areas "separated ... only by a public
street" simply does not appear in the definition of gross lot area under the current
Zoning Ordinance; and it may not be imported into the ordinance by any lawful
and reasonable application of the plain language of that ordinance. See Raley v.
City of Miami, op. cit. (express parking requirements may not be "interpreted" as
inapplicable to Sunday school floor space); Tibor Hallo v. City of Miami, op. cit.
(building orientation requirement may not be imported into zoning ordinance
provisions); and City of Deland v. Lowe, 544 So.2d 1165 (Fla. 5th DCA
1989)(division of properties into two different zoning districts precludes properties
from being treated as legally adjacent).
Under the Zoning Ordinance, therefore, the term adjoining is used in its
common dictionary definition, meaning "to join", "to border on", "to meet", "to be
next to" or "to be contiguous" and not to be located across the street or to be
separated by a street. Indeed, any other usage of the term adjoining would result in
having all sorts of areas of public open space being potentially utilized for increasing
development rights on nearby private properties. Without any criteria for defining
which nearby park is "adjoining," there is no legal guideline for ascertaining which
park is or is not qualified to be part of "gross lot area" calculations. See Florida
Home Builders Assn. v. Division of Labor, 367 So.2d 219, 220 (Fla. 1979) (the
statutory requirement based on "need" is too indefinite to be legally meaningful).
-10-
C. Violation of Comprehensive Neighborhood Plan
The proposed conversion of Dinner Key public park land and its inclusion
in the gross lot area of a private development site would also conflict with the
prohibitions and policies against such conversion and use in the City of Miami's
Comprehensive Neighborhood Plan.
First, under the Plan's "Interpretation of the Future Land Use Plan Map,"
the land use designations "are arranged following the `pyramid concept' of
cumulative inclusion, whereby subsequent categories are inclusive of those listed
previously except as otherwise noted." Accordingly, the maximum Floor Area Ratio
of 0.65 set forth in the "Restricted Parks and Recreation" designation is also
included in the "Recreation" designation. The conversion of the Dinner Key park
land area from a maximum 0.65 F.A.R. to a 1.72 or 1.21 F.A.R. as part of the
proposed Tower site directly violates this limitation of the Plan. Likewise, the
limited open space, park and recreation uses permitted under the Plan would be
violated by using public park land for "permanent living facilities" which are not
even permitted in the next more intense land use classification of "Marine
Facilities." See Miami Comprehensive Neighborhood Plan 1980 — 2000, Vol. 1,
Goals Objectives Policies, "Interpretation of the Future Land Use Plan Map," pp. 1
— 2.
The proposed conversion of Dinner Key park land area into private gross lot
area also violates the Goals Objectives Policies element of the Miami
Comprehensive Neighborhood Plan as it applies to "Parks, Recreation and Open
Space." Specifically, the conversion would be directly contrary to Policy PR-1.1.10:
"In the transfer of ownership of City park facilities or public open spaces, OR if the
conversion of City owned park or public open space to non -recreational use occurs
in areas of crucial shortages, a formal justification for such action will be prepared
in order to assure that the City will take appropriate actions to ensure that, in these
areas with deficiencies, no net loss of recreational opportunities to affected residents
occurs as a result of such title transfers OR conversions." Miami Comprehensive
Neighborhood Plan, Goals Objectives Policies, PR-1.1.10 (emphasis added).
Public park land along the shore of Biscayne Bay is an area of finite and
unique character; and the conversion of land area from the bay front park at
Dinner Key can only add to the "crucial shortage" of such waterfront parks in the
community. The adverse impact of this conversion becomes even more significant
when the "gross lot area" provision of the zoning ordinance is applied throughout
the City. Shoreline parks such as Bayfront Park, Kennedy Park, Peacock Park, the
Barnacle and many others would all be subject to conversion into the private "gross
lot area" of properties located across the street from a park, thereby directly
burdening the park with increased land use intensity, traffic and use. The "crucial
shortage" contemplated by the Plan would certainly become more and more evident
as the proposed interpretation of "adjoining" park land is applied to all the parks,
bay front or otherwise, in the City of Miami.
Finally, the inclusion of waterfront park land as part of the Tower site is
contrary to Future Land Use Policy LU-1.5.2 which provides:
Land use regulations and development policies will be consistent with the intent
and purpose of Miami -Dade County's Waterfront Charter Amendment, Shoreline
Development Review Ordinance, and the rules of the Biscayne Bay Aquatic Preserve
Management Area.
This provision references both the Waterfront Charter Amendment and the
Shoreline Development Review Ordinance of Miami -Dade County. The referenced
charter amendment is Article 6. "Parks, Aquatic Preserves And Preservation
Lands" of the Miami -Dade County Charter. Although this 1993 charter
amendment itself does not directly apply to the City of Miami, the City's own land
use policy requires consistency with the charter's "intent and purpose."
- 12 -
Section 6.01 of the charter establishes a "Policy" that "Parks ... shall be
protected from commercial development and exploitation and their ... scenic
beauties shall be preserved." In furtherance of this policy, Section 6.02 mandates
that "parks shall be used for public park purposes only, ..." The planned extension
of the Tower's building site into Dinner Key park and the resulting construction of
the massive Tower intruding upon the vistas of both the park and Biscayne Bay are
contrary to these charter provisions. They constitute an impermissible
"development and exploitation" of park lands, a disruption of the "scenic beauties"
of both the park and the bay and a violation of the restriction that the "park shall be
used for public park purposes only." Accordingly, the Tower is inconsistent with
the City's Comprehensive Neighborhood Plan on these grounds as well.
The comprehensive plan's requirement of compliance with the Shoreline
Development Review Ordinance is also violated by the Tower. As discussed
subsequently, both the review procedures and the view corridor limitations of the
Shoreline ordinance apply to the Tower due to its extension into Dinner Key park
and its location between two public streets and Biscayne Bay. In its present posture,
however, the Tower fails to comply with either of these two Shoreline provisions.
The Tower project also violates the "intent and purpose" of these provisions to
protect shoreline vistas both from and off the land, thereby also making it
inconsistent with Future Land Use Policy LU-1.5.2, Miami Comprehensive
Neighborhood Plan (See Subsection III, c below).
In summary, even if the special permit might be authorized by the Zoning
Ordinance's definition of "gross lot area" and thereby be consistent with this land
development regulation, the permit is nevertheless inconsistent with the
comprehensive plan in violation of Chapter 163, Florida Statutes. Development
orders such as the Class II Special permit must be consistent with the local
_13-
comprehensive plan; and compliance with the City's development regulations which
implement the comprehensive plan is not sufficient to establish consistency with the
policies, goals and objectives of the comprehensive plan. Buck Lake Affiance, Inc. v.
Board of County Commissioners of Leon County, 765 So.2d 124 (Fla. ISt DCA 2000).
II. UNAUTHORIZED TRANSFER OF
DEVELOPMENT RIGHTS (TDR) FROM
HOTEL SITE TO TOWER SITE
Utilization of public park land area is essential to the Tower project as
proposed. Having reached out across South Bayshore Drive to increase the gross lot
area of the hotel site, the Tower project then purports to transfer that gross lot area
appendage from the hotel site to the Tower site. Thus, the Tower relies on the
existing Grand Bay Hotel site to obtain a majority of its massive floor area; the
argument being that under present zoning, the hotel site now has "excess" gross lot
area to transfer to the Tower site.
A. No Excess Development Rights Available On The Hotel Site
A review of the zoning history of the hotel site shows that this "excess" is
nothing more than the recent and unlawful incorporation of Dinner Key public
park land into the gross lot area of the hotel site and, then, the unauthorized
transfer of this so-called "excess" to the Tower site. The existing hotel completely
exhausted its floor area ratio of 1.5 F.A.R. when it was approved and constructed
under its R-C District zoning and Resolution No. 80-66 during 1980-1983. Today
under the present Zoning Ordinance, the hotel site is zoned "0" with an SD-17
Overlay. The site's F.A.R. is now applied to the gross lot area, rather than the net
lot area as before, so that the land area used for F.A.R. calculations is increased by
the half rights -of way of S.W. 27th Avenue and South Bayshore Drive as discussed
above.
-14-
However, this increase in land area was offset by a simultaneous 20%
decrease in the site's F.A.R. from 1.5 to 1.21 under the SD-17 overlay. As a result,
the total and previously exhausted floor area limits of the site did not appreciably
change. It is only the unlawful and unauthorized addition of public park land area
located across the street from the hotel site that would provide that site with any
"excess" gross lot area at the present time. Without the illegal conversion of public
park land into private land use, there would be no additional development rights for
the existing hotel site to transfer. The Tower project simply cannot stand on the
development rights legally available to it.
B. Unlawful Transfer of Gross Lot Area From The Hotel Site
To The Tower Site
Having reached out across South Bayshore Drive to expand the gross lot area
of the hotel and Tower sites into the park, the proposed project then purports to
transfer the newly incorporated gross lot area of the hotel site over to the Tower
site. However, there is absolutely no authorization in the Zoning Ordinance for
such a transfer. The proposed transfer is from an already fully developed single
building site to an adjoining vacant, remnant parcel — without any previously
approved overall plan for or regulatory limitations on the transfer. The City's
prior zoning ordinance No. 9500 authorized and regulated such "transfer of
development rights" and expressly included the transfer of gross lot area between
contiguous properties under the same ownership. Section 2014, "Transfer of
Development Rights," Ordinance No. 9500. The present Zoning Ordinance, by
contrast, contains no such authorization or regulatory scheme.
L De Facto "Spot Zoning."
The cumulative impact of this type of unplanned and uncontrolled land
development is illustrated by the massive Tower edifice, an incompatible structure
sandwiched between the Offices in the Grove and the Grand Bay Hotel. The
governing SD-17 Overlay district was enacted to prevent just this sort of intrusion.
-15-
The overlay district is divided into two distinct land use intensities; (1) the
properties fronting on the west side of S.W. 27th Avenue have a maximum Floor
Area Ratio of 1.72; and (2) the properties fronting South Bayshore Drive to the east
of S.W. 27th Avenue have a reduced Floor Area Ratio of 1.21. The SD-17 properties
to the west of S.W. 27th Avenue therefore have a 42% greater land use intensity than
the SD-17 properties located along South Bayshore Drive to the east.
The maximum height limit for SD-17 is a uniform 210 feet. However, this
maximum height was designed to be achieved only under the more intensive SD-17
land use of F.A.R. 1.72, The sole reason this 210 feet height is needed for Tower is
its proposed placement on a remnant piece of land between the Grand Bay Hotel
and the Offices in the Grove. This remnant parcel simply cannot physically
accommodate the total floor area being amassed -- first by the unlawful
incorporation and conversion of public park land area into gross lot area, and then
by the unauthorized transfer of that gross lot area from the hotel site to the Tower
site. The extreme increase in the site's total floor area forces the building to a height
far above the two buildings on either side and far in excess of what is contemplated
by the site's lower 1.21 F.A.R.
Applying a proportionate height limit to the two SD-17 Overlay land use
intensities -- F.A.R. 1.72 and F.A.R. 1.21-- the maximum height of 210 feet
achievable in the more intensive land use area would be reduced to approximately
140-145 feet in the less intensive land use area of SD-17 where the Tower site is
located. At this lesser, proportionate height limit, the Tower would be in keeping
with the heights of both the Offices in the Grove and the Grand Bay Hotel next
door.
It is only the unauthorized use of public park land and transfer of
development rights to the Tower site from the hotel site that result in the intrusive,
incompatible building now proposed. The Tower is totally out of scale and
character with development along South Bayshore Drive, a "designated scenic
- 16 -
corridor" of the Village of Coconut Grove. It not only towers over the adjoining two
buildings, its over development also conflicts with the entire stepped -down pattern
of land use intensity and scale for properties between Tigertail and South Bayshore
Drive east of S.W. 27th Avenue. See Pinecrest Lakes v. Shidel, 795 So.2d 191 (Fla.
4th DCA 2001)(scaled down development required to meet established "tiering"
policy of local government comprehensive plan).
The aesthetic impact of the Tower building is also negative; as one member
of the Urban Development Review Board commented, the height and setback of the
Tower "interrupts" the graceful, terraced design of the Grand Bay Hotel — a
"signature building" at the gateway to City Hall, Biscayne Bay and the Grove. The
Tower's "interruption," however, is more than just an aesthetic or design problem;
it constitutes nothing less than de facto "spot zoning" rejected by jurisdictions
throughout the State of Florida and the United States. Indeed, the Tower project
best fits the description recently articulated by the Third District Court of Appeal as
"melanoma zoning" — a cancer certain to spread along South Bayshore Drive,
destroying it as a unique, scenic vista in the City of Miami. See Bird -Kendall
Homeowners Assn. v. Metropolitan Dade County, 695 So.2d 908 (Fla. 3d DCA
1997); Metropolitan Dade County v. Section 11 Property Corp., 719 S.2d 1204 (Fla.
3d DCA 1998); and Las Olas Tower Co. v. City of Ft. Lauderdale, 733 So.2d 1034
(Fla. 3d DCA 1999). See also, Salvation Army v. Board of County Commissioners,
523 So.2d 611 (Fla. 3d DCA 1988) (aggregation of otherwise permitted land use
intensity into a single large, incompatible structure unauthorized); and Board of
County Commissioners v. Lowas, 348 So.2d 13 (Fla.3d DCA 1977) (special
development permit must be compatible with neighborhood and not destroy its
character).
2. Failure To Qualify As A Phased Project Or Area Development.
The inter -site transfer from the hotel site to the Tower site is not authorized
by any transfer of development rights provision of the Zoning Ordinance. The TDR
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provisions of the City's earlier zoning ordinances have been removed; and the only
legal authorization for a transfer or distribution of development rights under the
current Zoning Ordinance is for a "Phased project" as defined in Section 2502. The
proposed Tower, however, does not qualify as a phased project first because its site
in combination with the Grand Bay Hotel site does not "contain a minimum of three
(3) acres of land" as expressly required by the Zoning Ordinance. In addition, the
Tower was never included as part of the original Grand Bay Hotel project so that
the developer failed "to establish the maximum development capacity for the
subject property" as required for a phased project. Section 2502, "Phased project."
Finally, because the Tower has not qualified as a phased project, the developer
cannot now unilaterally impose "the distribution of development rights within the
boundaries of the subject property" as contemplated by the phased project
definition in the Zoning Ordinance.
In sum, the Tower project may not simply sever development rights from the
existing hotel site and then pile them onto the remnant, vacant parcel next door.
Neither sound planning and design principles nor the express legal provisions of the
Zoning Ordinance would permit this approach. The reason a project such as the
Tower -- with multiple principle buildings constructed over an extended period of
time — must meet the requirements of a "Phased project" is to ensure that the
project will be planned in its entirety from the outset. The location, design and scale
of the proposed buildings would be evaluated together, with the overall land use
intensity fixed and the allocation of land use rights established. The same would be
true if the Tower had been part of an "Area development" such as a PUD or cluster
which would also require an overall plan of development prior to commencement.
Section 2502, "Area development."
The proposed project is nevertheless asking to be treated as a "Phased
project" by the very nature of its application. It seeks to aggregate separate
properties and separate buildings into a single project; to "establish the maximum
-18-
development capacity" for the combined properties; and to have the projects
"considered as one (1) project for the purpose of calculating zoning requirements."
The proposed Tower, however, is not and cannot be "qualified" as a "phased
project" so as to permit "the distribution of development rights within [its]
boundaries." A phased project is a single project which is "to be developed in
stages" with maximum development capacity and allocation of development rights
being established at the outset. It is definitely not like the Tower project — the
product of a totally unplanned joinder of two properties, belatedly cobbled together
after two decades by piling newly discovered "excess" capacities of the first project
onto a remnant adjoining parcel. This is nothing more than a phased project in
reverse; and it finds no authority in the City's Zoning Ordinance or in accepted
planning principles.
The real question posed to the City's Urban Design Review Board is: Would
this proposed plan of the combined Tower and hotel sites be acceptable under the
special permit standards of the Zoning Ordinance if the combined sites were
completely undeveloped today? The answer is obviously no. It is inconceivable that
the UDRB would recommend the disjointed, crowded and totally incompatible
project now being presented — especially where the massive addition of park land
area is today being utilized solely to overwhelm the remnant Tower parcel. The
Tower project, furthermore, has no legal entitlement to rely on the previously
planned, reviewed and approved Grand Bay Hotel site — especially where that hotel
site's newly discovered development rights are now being used with total disregard
for the hotel itself. The Tower project is but an unauthorized afterthought; and it
shows.
3. Unity of Title Does Not Effectuate Transfer of Development Rights.
The evasion of sound planning principles and zoning requirements sought by
the Tower project also cannot be accomplished by a misapplication of the unity of
title/covenant provisions of Section 910 of the Zoning Ordinance. These provisions
-19-
apply only to protect against separation of a single "main building" from accessory
use buildings, undeveloped platted lots or parking facilities required to serve that
main building. Section 910. These provisions in no way authorize the post -
development transfer from an existing main building site to a new main building
site. This is particularly true in the present case where the Grand Bay Hotel site
was designed pursuant to a site plan that was reviewed and approved by City
Commission Resolution 80-66, which expressly requires the hotel to be built "as per
plans on file."
By definition, a developable "Lot" under the Zoning Ordinance must be
either "intended as a single building site or unit, OR as a phased projeet"(emphasis
added). Section 2502, "Lot". The proposed project site does not meet either of these
two requirements for a "Lot" -- it is neither a single building site nor a phased
project. To the contrary, the Tower project improperly seeks to carve out a second
building site from a "residual lot" and a portion of the existing hotel site which
"does not meet the requirements of the Zoning Ordinance." Section 2502, "Lot".
Under the terms of the Zoning Ordinance, a unity of title is not the vehicle to cure
these zoning deficiencies. To the contrary, the use of a unity of title to change
zoning regulations or to justify a variance from zoning regulations turns the
protective purpose of a unity of title on its head and, furthermore, is not authorized
under Florida law, See Maturo v. City of Coral Gables, 619 So.2d 455 (Fla. 3d DCA
1993)(unity of title insufficient to support variance or to transfer development
rights). A unity of title is authorized only where there is an independent, express
authorization for a transfer of development rights and the unity of title is used to
ensure adherence to the limitations on the transfer. See e.g., Kilgore v. Killearn
Homes Assn., 676 So.2d 4 (Fla. 1st DCA 1996) (unity of title used to ensure
adherence to covenant transferring development rights, not to change or increase
development rights).
- 20 -
III. PROCEDURAL VIOLATIONS IN THE
PROPOSED TOWER PROJECT
The proposed Tower project presents several procedural defects and
violations of zoning law that cannot be circumvented or overcome by issuance of a
Class II Special Permit:
1. Special Exception Required for Combined Parking/Accessways.
The Zoning Ordinance requires a special exception in situations such as the
present case where "uses on adjoining lots propose to combine parking facilities,
including accessways." Section 917.9. The adjoining lots of the Grand Bay Plaza
office, the Grand Bay Hotel and the Tower at Grand Bay all propose to combine
parking facilities and/or to combine accessways from South Bayshore Drive. At the
present time, the office and the hotel share the main accessway to their buildings
and parking areas off South Bayshore; and the proposed Tower would do the same.
In fact, the office and hotel sites are governed by recorded easement agreements
which set forth the rights and obligations of the two sites with respect to the
combined vehicular accessway as well as pedestrian access between the two
properties. The addition of the Tower project to this combined accessway
arrangement would require a special exception review and approval at public
hearing. Under established special permit procedures, the pending Class II Special
Permit would need to be made part of the special exception proceedings as a lesser
included permit. Section 1301, Zoning Ordinance.
2. Major Use Special Permit Required for Office/Hotel/Tower Sites.
The proposed Tower project, when considered in conjunction with the
Grand Bay hotel and the Grand Bay Plaza offices, would exceed the Major Use
Special Permit threshold for both "non-residential uses in excess of two hundred
thousand (200,000) square feet of floor area" and the aggregate offstreet parking
- 21 -
threshold of five hundred (500) spaces. Section 1701 (2) (7) and (11), Zoning
Ordinance. The three projects should be aggregated due to their proximity to each
other, their shared main entrance way, their cross vehicular and pedestrian access
easements and their common Grand Bay name. Even if the hotel site is excluded
because it might have been completed prior to June 27,1983, the Tower and office
projects would still exceed these MUSP thresholds. The MUSP review would
incorporate both the above -referenced special exception required for combined
accessways and the Class II Special Permit so that all three special permits could be
reviewed in one proceeding. Section 1301, Zoning Ordinance.
The MUSP review is particularly important for the Tower project because it
would require submission of a traffic study for the area. An earlier study
commissioned for the Ritz Carlton demonstrated that only a miniscule traffic
capacity was left for the linkages and intersections of S.W. 27th Avenue, South
Bayshore Drive and Tigertail. The Tower as well as the newly proposed project at
the Naval site will be adding substantial traffic to these public streets and could
result in a violation of the City's concurrency regulations. Accordingly, a traffic
study should be required whether or not an MUSP review takes place.
3. Shoreline Development Review and View Corridor Required..
The proposed inclusion of Dinner Key's waterfront park as part of the
Project's development site adjacent to the shore of Biscayne Bay also requires
adherence to the Shoreline Development Review regulations of Miami -Dade County.
Article III, Chapter 33D, Code of Miami -Dade County. This planned
incorporation of a 70 feet wide expanse of park area across South Bayshore Drive
would place the project site within the "Shoreline development review boundary"
which is "[d]efined by the nearest public roadway . .. paralleling the shoreline of
Biscayne Bay ..." Sec. 33D-32, Code of Miami -Dade County.
- 22 -
The Tower site meets two thresholds of the Shoreline ordinance which
mandate review by the Shoreline Development Review Committee prior to final
approval. First, the Tower is a "residential development ... which [has' thirty (30)
units or more and nisi located within the shoreline development review boundary
but not abutting the shoreline." Sec. 33D-34 (2 ) b, Code of Miami -Dade County.
Second, the Tower's plans encompass a "site ... which lies wholly or partially
within the shoreline development review boundary." Sec. 33D-34 (2 ) d, Code of
Miami -Dade County. Under controlling Florida case law, where review by Miami -
Dade County's Shoreline Development Review Committee is required, failure to
complete such a review invalidates any local governmental approvals for a project.
O'Conner v. Dade County, 410 So.2d 605 (Fla. 3d DCA 1982) (change in pending
zoning application without undergoing review by Developmental Impact Committee
invalidates approval of the application).
The Tower site is also subject to the "view corridor" requirement of the
Shoreline ordinance which provides:
Where a lot or parcel is located between the shoreline and a public roadway, an
unimpeded visual corridor to Biscayne Bay of twenty (20) percent of the width of the
lot, up to one hundred (100)feet maximum, shall be provided on one (1) side of the
parcel. The minimum width of said view corridor shall be twenty (20) feet Parking,
accessory or ancillary structures shall not be permitted in said viewing corridor. Sec.
33D-38, Code of Miami -Dade County.
The Tower site is situated between two public roadways and the shoreline, South
Bayshore Drive and S.W. 27th Avenue. Because the site lies within the shoreline
development review boundary, it must adhere to the viewing corridor requirement
for the entire project. Accordingly, a minimum 20 feet wide corridor must be
provided for any development of the site; and a wider view corridor of up to 100 feet
might be required if the hotel site is included.
The Shoreline Development Review Ordinance was enacted in 1985, so it did
not apply to the existing developments along Bayshore. Moreover, these earlier
- 23 -
projects — unlike the Tower — did not include land area from Dinner Key park as
part of their building sites. Therefore, even if the shoreline law had been in force,
these projects would not have been within the shoreline development review
boundary. Today, the Tower seeks to take advantage of current zoning ordinances
and to increase its development rights by making a shoreline park part of its site.
By the same token, the Tower must also adhere to current shoreline regulations
which mandate both a plan review and a view corridor for such a project. The
Tower cannot have it both ways; it cannot extend its development site into the
shoreline development review boundary without at the same time subjecting itself to
shoreline development review requirements.
4. Amendment of Resolution 80-66 Required For Site Plan Revision.
The Grand Bay Hotel project was approved by the City Commission in
Resolution No. 80-66 which expressly required the construction and maintenance of
the hotel site to be "as per plans on file." Resolution No. 80-66. The proposed
Tower violates the approved hotel plan in several ways: the massive tower
interrupts and destroys the terraced, stepped back setback of the hotel and raises an
offensive, incompatible structure directly in front of City Hall and Dinner Key
park; the base of the tower encroaches upon and eliminates off street parking spaces
currently serving the hotel; the off street parking and access layout are significantly
modified; and the floor area of the site is enormously increased.
Under controlling Florida case law, these fundamental changes in the scale,
setback and height of the site cannot be considered in substantial compliance with
the original site plan even if the various calculations might technically comply with
the limits of the Zoning Ordinance. See Salvation Army v. Bd. of County
Commissioners, 523 So.2d 611 (Fla. 3d DCA 1988)(aggregation of permitted land
use intensity into a single large and incompatible building violates previously
approved site plan). A change in the site plan for the hotel site of this magnitude,
therefore, requires City Commission review and approval.
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5. Definite Special Permit Criteria Required Under Florida Law.
No legally enforceable criteria or standards for issuance of a Class II Special
Permit could possibly be met by any reasonable evaluation of the location, design
and scale of the proposed Tower. Indeed, the criteria for issuance of the special
permit are virtually non-existent. Under Florida law, however, the standards for
such administrative action must be clear so that the parties, the governing authority
and the courts are in a position to determine what is required and whether those
requirements have been met. See Effie, Inc. v. City of Ocala, 438 S.2d 506, 508 (Fla.
3d DCA 1983). As Florida's Third District has stated: "Where a statute or
ordinance delegates powers to an administrative body, there must be sufficient
standards to guide the agency in the administration of the law." Metropolitan Dade
County v. P.J. Birds, Inc., 654 So.2d 170, 175 (Fla. 3d DCA 1995). Moreover, this
requirement for clear standards also applies where the legislative body itself might
ultimately act to approve a special permit. See City of Miami v. Save Brickell
Avenue, Inc., 426 So.2d 1100, 1104 (Fla. 3d DCA 1983).
The standards for granting a special permit in the City's Zoning Ordinance
fail to provide the required specificity and clarity under Florida law; "the language
is legally deficient because it lacks objective criteria for ... the decision making
process." Metropolitan Dade County v. Omnipoint Holdings, Inc., 811 So.2d 767
(Fla. 3d DCA 2002). Under Article 13, there are no general standards for special
permits except for references to protecting "the public interest generally, ...
adjacent properties, the neighborhood and the city as a whole." Section 1300,
"Intent, generally." The provisions governing Class II Special Permits also provide
no additional standards or criteria for review. Article 15, Zoning Ordinance.
Accordingly, there are simply no "sufficient guidelines for exercising ... discretion
in deciding whether or not to grant a ... permit," Clemente v. Earnest, 526 So.2d
981 (Fla. 3d DCA 1987), review denied, 525 So.2d 877 (Fla. 1988); the special
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permit procedure itself is unconstitutional, See Qi u point Holdings, op. cit. at 769;
and the Class II Special Permit required by the SD-17 Overlay District may not be
issued. Save Brickell Avenue, Ine.•v. City of Miaini, 426 So.2d 1180 (Fla. 3d lICA
1983)(inadequate mandatory criteria invalidates special -permit approval).
Respectfully submitted
Anthony J. O'Donnell, Jr.
Attorney for the Residents
1129 Palermo Avenue
Coral Gables, Florida 33134
(305) 445-5727
June 13, 2003