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HomeMy WebLinkAboutSubmittal-Opinion Of CounselLAW OFFICES SERBER & WEALCATCH, P.A. Hand -Delivery Jorge Fernandez, City Attorney City of Miami 444 S.W. Second Avenue Miami, Florida 33130 TURNBERRY PLAZA, SUITE 801 2875 NORTHEAST 191"STREET *VENTURA, FLORIDA 33180 TELEPHONE (305) 932-6262 TELECOPY (305) 933-9393 October 28, 2004 OPINION OF COUNSEL rr c tiOet ry ,,Re: 02, L.L.C. submission for MUSP approval; Bankers Park Subdivision Our File No.: 132-63 Dear Mr. Fernandez: I represent 02, L.L.C, a Florida limited liability company, which is the developer for a Major Use Special Permit for a 117 unit residential project located on the west side of North Bayshore Drive and NE 28th Street. I am a member of the Florida Bar since 1994 and a member of the District of Columbia Bar since 1995. For approximately the last ten years I have been practicing and specializing in real estate transaction law. I am an agent of First American Title Insurance Company and an agent of Attorney's Title Insurance Fund (The Fund). This firm was retained by 02, L.L.C. for the acquisition of Lots 1, 2, 3, 4, 49 and 50 located in the Banker's Park Subdivision and more specifically abutting NE 28th Street. The developer has proffered to landscape and maintain the area which is approximately 190 feet in length by 28 feet in width (5,320 square feet) (the "Land Strip"), which is located directly adjacent to Biscayne Bay. A copy of the tax printout is enclosed with the Land Strip identified by the red outline (Exhibit "1"). This letter addresses the ownership of the Land Strip by the City, and not being owned by the property owners of the Bankers Park Subdivision. The tax printout which includes the folio number for the Land Strip which is 01-3230-017-0420, identifies the City of Miami as the property owner, although the City's Asset Management Department has stated that they have no record of the City owning this land. / SUBMITTED INTO THE PUBLIC RECORD FOR ITEM Fz., ON io-as o4 The purpose for this request is because the developer has a Major Use Special Permit scheduled for City Commission on October 28, 2004, which includes in its gross lot area an extension of 70 feet into Biscayne Bay, as permitted in the City's Zoning Ordinance. The developer's MUSP also includes providing landscaping and maintaining this Land Strip in order to beautify the neighborhood. The developer has been meeting with the surrounding property owners to obtain their input on the proposed landscape for this area. Historically, this has been a piece of land that has existed with no maintenance or upkeep and had been plagued by Australian Pines, which are an invasive non native species which have been proven to be a hazard during hurricane season. Photographs are enclosed (Exhibit "2"). The Land Strip would continue to remain open to the public. However, there is a property owner in the neighborhood who is taking the position that the Land Strip is owned by all the property owners of the Bankers Park Plat recorded in Plat Book 2 at Page 53 (Exhibit "3"). We believe this position erroneous. The Plat states: KNOWN ALL MEN BY THESE PRESENTS — That we W.S. Witham and wife Jean Witham hereby file the foregoing plat, the same being known as Bankers Park and being a subdivision of the land described as follows — Beginning on the range line between Ranges Forty-one (41) and Forty-two (42) at the southwest comer of the fractional northwest quarter of Section Thirty (30), Township Fifty-three (53), South of Range Forty-one (41) East; thence run north along said Range line ten (10) rods; thence run east eighty (80) rods more or less to low water mark on Biscayne Bay, thence run south on said low water mark ten (10) rods more or less to the South east corner of said fractional northwest quarter, thence run west eighty (80) rods more or less to point of beginning. Also block fifteen (15) of Broadmoor and addition to the City of Miami, Fla; said block fifteen (15) being a strip of land sixty (60) feet north and south; 1,365 feet more or less and running from what is known as Biscayne Drive to the waters of Biscayne Bay together with all riparian rights and water privileges. The Plat also states "Witham Ave is dedicated to owners of lots abutting on same, and each lot owner is guaranteed the right to use the Bay Front" [Emphasis Added]. The Plat then "Notes" the following: "All Lots to have Bay Front Rights" [Emphasis Added]." It is our opinion that said statements define the area included within the Plat and grant the subdivision property owners the dedication of Witham Avenue (n/k/a N.E. 28th Street) and the right for access and use; but the Plat does not confer ownership of the Land Strip to the subdivision owners. With regard to the issue of ownership of the Land Strip, we have hired First American Title Insurance Company, which has conducted a title search on the Land Strip, going back to Submitted Into the public record in connection with 2 item Pz--r on to -•>-2 -o 't Priscilla A. Thompson City Clerk 1913 (the year the Plat was filed for record), and the only deed that has been found is from 1926 which grants riparian rights of the Land Strip to the City of Miami (Exhibit "4"). Further research has been conducted and upon review of the Plat and the City's Municipal Atlas Sheet 21-AF (Exhibit "5"), it is evident that the Land Strip was originally water within Biscayne Bay but at some point after was filled as shown on the aerial photographs dated 1945 and 1957 (Exhibits 6 and 7). One of the many reasons why we believe that the subject Land Strip is in fact owned by the City is because the Land Strip is governed by the Butler Act enacted by the Florida Legislature in 1921. This legislation provides that ownership of all filled in submerged lands vest in the upland owner. North Bayshore Drive is a public City street and is directly adjacent and upland to the Land Strip. The Florida Supreme Court explained the operation of the Butler Act in City of West Palm Beach v. Board of Trustees of the Internal Improvement Fund, 746 So. 2d 1085 (Fla. 1999) (Exhibit 8). As explained by the Court in the City of West Palm Beach decision, all of Florida's submerged lands, "including the shore or space located between the high and low water marks," became vested in the State of Florida when Florida became a State in 1845, as codified in the Riparian Rights Act of 1856. City of West Palm Beach, 746 So. 2d at 1088-89. According to the Court, the 1921 Butler Act re-enacted the Riparian Rights Act of 1856 and worked to vest in upland`property owners fee simple title "to submerged lands upon which upland owners constructed certain improvements in the interest of encouraging commerce by developing waterfront property." City of West Palm Beach, 746 So. 2d at 1086. The Court also recites the text of the Butler Act in its reported decision, as follows: Section 1. Whereas, It is for the benefit of the State of Florida that water front property be improved and developed; and Whereas, the State being the proprietor of all submerged lands and water privileges within its boundaries, which prevents the riparian owners from improving their water lots; therefore The State of Florida, for the consideration above mentioned, subject to any inalienable trust under which the State holds said lands, divests itself of all right, title and interest to all lands covered by water lying in front of any tract of land owned by the United States or by any person, natural or artificial, or by any municipality, county or governmental corporation under the laws of Florida, lying upon any navigable stream or bay of the sea or harbor, as far as to the edge of the channel, and hereby vests the full title to the same, subject to said trust in and to the riparian proprietors, giving them the full right and privilege to build wharves The West Palm Beach Court also explained that the Butler legislation in 1951, except as to Miami -Dade and Palm Beach the Butler Act except as to Dade and Palm Beach Counties. 253.129, Fla. Stat. (1997))." City of West Palm Beach, 746 So 3 . 2d at 1086 n.3. Act was repealed in favor of replacement Counties: "In 1951, the legislature repealed Ch. 51-26776, Laws of Fla. (codified at § Submitted Into the public record in connection wi,th item P2--7 on to)`� aL( Priscilla A. Thompson City Clerk into streams or waters of the bay or harbor as far as may be necessary to affect the purposes described, and to fill up from the shore, bank or beach as far as may be desired, not obstructing the channel, but leaving full space for the requirements of commerce, and upon lands so filled in to erect warehouses, dwellings or other buildings and also the right to prevent encroachments of any other person upon all such submerged land in the direction of their lines continued to the channel by bill in chancery or at law, and to have and maintain action of trespass in any court of competent jurisdiction in the State, for any interference with such property, also confirming to the riparian proprietors all improvements which may have heretofore been made upon submerged lands. Provided, that the grant herein made shall apply to and affect only those submerged lands which have been, or may be hereafter, actually bulk -headed or filled in or permanently improved continuously from high water mark in the direction of the channel, or as near in the direction of the channel as practicable to equitably distribute the submerged lands, and shall in no wise affect such submerged lands until actually filled in or permanently improved. City of West Palm Beach, 746 So. 2d at 1088 (quoting, Ch. 8537, Laws of Fla. (1921)) (emphasis added). Applying the foregoing language of the Butler Act, the Court in City of West Palm Beach case held that the property in question did not vest in the City of West Palm Beach because the property was dredged but was never "bulk -headed" or "filled in or permanently improved." In short, the Court held that dredging alone is not a "permanent improvement" under the Act. But in this case, there is no doubt that the Land Strip was in fact filled in and "bulk - headed" with a concrete seawall. Because the Land Strip was filled along with the construction of a seawall and it being upland to North Bayshore Drive, ownership and title is vested in the City under the clear mandate and provisions of the Butler Act. Encls. cc: 02, L.L.C. 4 Very truly yours, Daniel J. Serber Submitted Into the public record in connection with item on to a Priscil{a A. Thompson City Clerk