HomeMy WebLinkAboutComplaintGRAND BAHAMAS DEVELOPMENT
OF VTI LAGE WEST CORPORATION,
a Florida Corporation, JARRETTE BAY
INVESTMENTS CORPORATION, a
Florida Corporation, COMBINED
INVESTORS, INC., a Florida Corporation,
MUSKAT BROTHERS, INC., a Florida
Corporation, ORLANDO BENITEZ, an
Individual, and ROSA BENITEZ, an
Individual,
Plaintiffs,
THE CITY OF MIAMI, a Florida municipal
corporation,
Defendant.
IN THE CIRCUIT COURT OF THE 11TH
JUDICIAL CIRCUIT, IN AND FOR
MIAMI-DADE COUNTY, FLORIDA
GENERAL JURISDICTION DIVISION
CASE NO.11114 2 2 0 6 5 Cet 1 if .
THE ORECANAL FLJ
ON OCT I 9 2004
IN THE OFFICE OF
CIRCUIT COURT CADE'CO.,FC,.
CIVIL DIVISIO-N,,
COMPLAINT
The Plaintiffs, GRAND BAHAMAS DEVELOPMENT OF VILLAGE WEST
CORPORATION, a Florida Corporation, JARRETTE BAY INVESTMENTS CORPORATION,
a Florida Corporation, COMBINED INVESTORS, INC., a Florida Corporation, MUSKAT
BROTHERS, INC., a Florida Corporation, ORLANDO BENITEZ, an Individual, and ROSA
BENITEZ, an Individual, by and through the undersigned counsel, hereby sue the Defendant,
THE CITY OF MIAMI, a Florida municipal corporation, and as grounds therefor, allege the
following:
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BILZIN SUMBERG BAENA PRICE
200 SOUTH BrSCAYNE BOULEVARD, SUITE 2500
•
SUBMITTED INTO THE
PUBLIC RECORD FOR
oN .
Grand Bahamas Development of Village West Corporation, etc., et al.
v. The City of Miami, etc.
I. PARTIES, JURISDICTION & VENUE
This is an action for, among other things, declaratory and injunctive relief and for
money damages in excess of Fifteen Thousand and No/100 Dollars ($15,000.00), exclusive of
interest, costs, and attorneys' fees.
2. At all times material hereto, Plaintiff, GRAND BAHAMAS DEVELOPMENT
OF VILLAGE WEST CORPORATION ("GRAND BAHAMAS"), was and is a Florida
Corporation authorized to do and doing business in Miami -Dade County, Florida.
3 At all times material hereto, Plaintiff, JARRETTE BAY INVESTMENTS
CORPORATION ("JARRETTE BAY"), was and is a Florida Corporation authorized to do and
doing business in Miami -Dade County, Florida.
4. At all times material hereto, Plaintiff, COMBINED INVESTORS, INC.
("COMBINED"), was and is a Florida Corporation authorized to do and doing business in
Miami -Dade County, Florida.
5. At all times material hereto, Plaintiff, MUSKAT BROTHERS, INC
("MUSKAT"), was and is a Florida Corporation authorized to do and doing business in Miami -
Dade County, Florida.
6. At all times material hereto, Plaintiff, ORLANDO BENITEZ ("Mr. Benitez"),
was and is a resident of Miami -Dade County, Florida, and is otherwise sui juris.
7. At all times material hereto, Plaintiff, ROSA BENITEZ ("Mrs. Benitez' was
and is a resident of Miami -Dade County, Florida, and is otherwise suijuris.
8. At all times material hereto, the Defendant, THE CITY OF MIAMI ("CITY"),
was and is a municipal corporation organized and existing under the laws of the State of Florida,
located in Miami -Dade County, Florida.
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BILZIN SUMBERG BAENA PRICE & AXELROD LLP
200 SOUTH BISCAYNE BOULEVARD, SUITE 2500 • mrAmE, FLORIDA 33131-5340
Grand Bahamas Development of Village West Corporation, etc., et al.
v. The Cityof Miami, etc.
9. Venue is proper in Miami -Dade County, Florida as the causes of action and injury
alleged herein arose in Miami -Dade County, Florida.
10. This Court has subject matter jurisdiction over this dispute in that the question of
whether or not a municipal ordinance is valid is a judicial question.
11. All named Plaintiffs have standing to maintain this action because they are
aggrieved parties that have been specially and injuriously affected by the application of the
Ordinance at issue to their property and business interests.
12. All named Plaintiffs have performed all conditions precedent to the institution of
this action, or the conditions have been excused or otherwise waived.
13. All named Plaintiffs have engaged the law firm of Bilzin Sumberg Baena Price &
Axelrod LLP to represent them in this action and have agreed to pay Bilzin Sumberg Baena Price
& Axelrod LLP a reasonable fee for its services.
II. BACKGROUND
Plaintiffs' Properties and the Original Zoning.
14. In or around May, 2002, and into 2003, Plaintiff GRAND BAHAMAS and
PlaintiffJARETTE BAY purchased parcels of real property located at 3301 Grand Avenue, 3355
Grand Avenue, 3375 Grand Avenue, and 3395 Grand Avenue, all within the city of Miami, in
Miami -Dade County, Florida.
15. In or around July 2003, Plaintiffs COMBINED, MUSKAT, Mr. Benitez and Mrs.
Benitez purchased parcels of real property located at 3432 Grand Avenue, 3440 Grand Avenue,
3456 Grand Avenue, and 3396 Grand Avenue, all within the city of Miami, in Miami -Dade
County, Florida.
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BILZIN SU M BERG BAENA PRICE & AXELROD LLP
200 SOUTH BISCAYNE BOULEVARD, SUITE 2500 • MIAMI, FLORIDA 33/.31-5340
Grand Bahamas Development of Villagt vVest Corporation, etc., et al.
v. The City of Miami, etc.
16. For purposes of this Complaint, the parcels of real property identified in
paragraphs 14 and 15, all located on Grand Avenue within the city of Miami in Miami -Dade
County, Florida, will be referred to herein as "the Property". Additionally, Plaintiffs GRAND
BAHAMAS, JARRETTE BAY, COMBINED, MUSKAT, Mrs. Benitez, and Mr. Benitez will be
collectively referred to herein as "the Plaintiffs."
17. At the time the Plaintiffs purchased the Property, it was zoned (R-2) Duplex
Residential, (0) Office and SD-2, and potential building's heights were "unlimited" (hereinafter,
the "Original Zoning").
18. In accordance with the Original Zoning, the Plaintiffs purchased the Property for
the purpose of developing and building residential condominium units. At all times material, it
was always the Plaintiffs' intention to develop and build twelve -story condominium buildings on
the Property in accordance with the Original Zoning.
19. Thereafter, in order to begin the building and construction process, the Plaintiffs
hired architects and all appropriate personnel and began working on plans in reliance on the
parameters of the Original Zoning. Specifically, the Plaintiffs spent considerable monies in
developing comprehensive building plans that were created for submission to the CITY for
approval.
20. However, not long thereafter, as the Plaintiffs were finalizing their building plans
and building permit applications for the Property, the Plaintiffs became aware of a potential
effort by the CITY to change the Property's Original Zoning to a new zoning classification. The
new proposal would change the Original Zoning to (R-2) Duplex Residential, (0) Office, and
SD-2 with an NCD-2 Overlay for a proposed "Grand Avenue Corridor Neighborhood
Conservation Overlay District" (hereinafter, the "Proposed Zoning" or "Ordinance No. 12418").
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BILZIN SUMBERG BAENA PRICE & AXELROD LLP
200 SOUTH BISCAYNE BOULEVARD, SUITE 2500 • MIAMI, FLORIDA 3313,-5340
Grand Bahamas Development of Village West Corporation, etc., et al.
v. The City of Miami, etc.
21. For the Plaintiffs, the practical effect of a zoning change from Original Zoning to
Proposed Zoning would be catastrophic. Such a change would prevent the Plaintiffs from
developing the condominium project as designed and planned. Indeed, under the parameters of
the Proposed Zoning, the Plaintiffs would be limited to developing five story condominium
buildings instead of twelve story buildings as designed. This change would materially effect the
Plaintiffs' investment and significantly reduce the amount of revenue that the Plaintiffs could
realize from the Property by over seventy -percent (70%).
22. Accordingly, and immediately thereafter, on or around July 15, 2003, the
Plaintiffs sought confirmation from the CITY that its project, which would be submitted for
building permits prior to the effective date of the zoning change from Original Zoning to
Proposed Zoning, would be "grand -fathered in" under the Original Zoning.
23. Specifically, on or around July 15, 2003, Mr. Mark Wallace of Wallace &
Perdomo, Inc., the Plaintiffs' consultant submitted a letter to Joyce McFee, Zoning Administrator
for the CITY. In his letter, Mr. Wallace requested written confirmation from Ms. McFee that the
projects, which would be submitted prior to the effective date of the change to Proposed Zoning,
would be "grand -fathered in" under the Original Zoning.
24. In response to Mr. Wallace's correspondence, Ms. McFee countersigned the letter
and indicated that, indeed, the Plaintiffs' project would be "grand -fathered in" under the Original
Zoning. A true and correct copy of Mr. Wallace's letter to Ms. McFee is attached hereto and
made a part hereof as Exhibit "A". Importantly, Ms. McFee's letter did not state that there were
any time limits that might become applicable to the processing of the plans or the issuance of the
building permits,
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BILZIN SUMBERG BAENA PRICE & AXELROD LLP
200 SOUTH BISCAYNE BOUL.EVARO, SJITE 2500 • MIAMI, FLORIDA 3313i-5340
Grand Bahamas Development of Village West Corporation, etc., et al.
v. The City of Miami, etc.
25. In reliance on the Original Zoning as confirmed by this letter, the Plaintiffs
continued to spend substantial amounts of money and time revising and processing plans for the
Project.
26. At or around the same time, the CITY planned to hold public hearings on its
potential zoning change to Proposed Zoning. As a prerequisite of sarne, the CITY purportedly
provided notice of the hearing by advertising the title of its Proposed Zoning ordinance.
Specifically, the CITY advertised that the Proposed Zoning ordinance would Amend Pages No.
46 and 47 of the zoning atlas of zoning ordinance No. 11000, as amended, by changing the
zoning classification from Original Zoning ((R-2) Duplex Residential, (0) Office and SD-2) to
Proposed Zoning ((R-2) Duplex Residential, (0) Office, and SD-2 with an NCD-2 Overlay for a
proposed "Grand Avenue Corridor Neighborhood Conservation Overlay District").
27. Thereafter, the CITY held public hearings on the proposed ordinance and zoning
change. The first reading before the City Commissioner was on July 24, 2003, arid the second
and final reading was on September 25, 2003.
28. After the public hearings were completed, the Proposed Zoning was enacted as
Ordinance No. 12418. Ordinance No. 12418 attempted to change the zoning for the Property to,
among other changes, limit buildings in the area to be no more five (5) stories high. The
Plaintiffs planned to develop 12-story mixed -use projects.
29. Thereafter, on or about September 25, 2003, the Plaintiffs submitted their plans to
the CITY in accordance with the Original Zoning and pursuant to the CITY's countersigned
letter indicating that the Plaintiffs would be "grand -fathered in" under the Original Zoning
ordinance.
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BILZIN SUMBERG BAENA PRICE & AXELROD LLP
200 SOUTH BISCAYNE BOULEVARD, SUITE Z500 • MIAMI, FLORIDA 33131-5340
Grand Bahamas Development of Village West Corporation, etc., et al.
v. The City of Miami, etc.
30. Inexplicably, and despite the CITY having countersigned Mr. Wallace's July 13,
2003 letter, as a result of the CITY passing Ordinance No. 12418, the CITY refused to grant the
Plaintiffs' building permits to begin construction of its condominium project. Incredibly, the
CITY continued to take this position even though it gladly accepted thousands of dollars from
the Plaintiffs for line and grade and other pertinent permits.
The Defective Proposed Zoning Ordinance.
31. However, even though the CITY is now refusing to issue to the Plaintiffs building
permits under the Original Zoning, in reality, the zoning for the Property has not changed and is
still the Original Zoning. Indeed, the CITY's Ordinance No. 12418, which purportedly changed
the zoning for the Property from the Original Zoning to the Proposed Zoning, has a title which
suggests that it changed the zoning classification from . . . "(R-2) Duplex Residential (0) Office
and SD-2 to R-2 (R-2) Duplex Residential (0) Office and SD-2 with an NCD-2 overlay for a
proposed Grand Avenue Corridor or Neighborhood Conservation Overlay District located in
Coconut Grove."
32. However, the Ordinance, in Section 2, actually made the following change . . .
"Schedule District Regulations is amended by changing the zoning classification from (0) Office
and SD-2 to (0) Office and SD-2 with an SD-26 Overlay to allow a "Coconut Grove Farmers
Market Special District" located in the Coconut Grove area . ..", not NCD-2.
33. Therefore, while the CITY may have tried to rezone the Property to the Proposed
Zoning, the body of the Ordinance did not apply that zoning category to the Property.
34. Accordingly, not only did Ordinance No. 12418 not rezone the Property, but it is
in fact an invalid ordinance as a result of the inconsistency and confusion between the title of the
Ordinance and the actual operative language in the body of the Ordinance. Moreover, since the
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BILZIN SUMBERG BAENA PRICE & AXELROD LLP
200 SOUTH BISCA'rNE BOULEVARD, Sul7E 2500 • rotAMI, FLORIDA 32131-5340
Grand Bahamas Development of Village West Corporation, etc., et al.
v. The City of Miami, etc.
title of the Ordinance was inconsistent with the body of the Ordinance, any notice given as a
result of CITY's distribution of the title was defective.
35. However, despite the invalidity and non -applicability of Ordinance No. 12418 to
the Property, and coupled with Ms. McFee's letter, the CITY continues to refuse to approve the
Plaintiffs' building peiiiiits, plans and applications that have been previously submitted by the
Plaintiffs under the parameters of the Original Zoning ordinance.
36. To make matters worse, CITY continues to delay and refuse to process the
Plaintiffs' Plans while contemporaneously trying to remedy its defective ordinance by issuing a
new ordinance.
37. The Plaintiffs has been financially damaged as a result of the CITY's zoning
change as the developmental value of the Property will be considerably affected if Ordinance
No. 12418 takes effect.
38. Judicial relief is appropriate in the instant case against the CITY's zoning
ordinance since Ordinance No. 12418 is clearly unreasonable, facially invalid, and
unconstitutional.
COUNT I
(Declaratory Relief)
39. The Plaintiffs adopt and incorporate by reference the allegations contained in
paragraphs 1 through 38 of the Complaint as if fully set forth herein.
40. This is a cause of action for declaratory relief.
41. The validity, meaning or application of a zoning ordinance may be determined in
a proceeding for declaratory relief. The Plaintiffs bring this cause of action to challenge the
validity of Ordinance No. 12418 that threatens the Plaintiffs' rights.
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BILZIN SUMBERG BAENA PRICE & AXELROD LLP
200 SOUTH BISCAYNE BOULEVARD, SUITE 2500 • MIAMI, FLORIDA 33131-5340
Grand Bahamas Development of Village West Corporation, etc., et al.
v. The City of Miami, etc.
42. Based on the facts as more fully described above, the Plaintiffs and the CITY
have an actual, present, adverse and antagonistic interest in the enforcement and validity of
Ordinance No. 12418 either in fact or in law.
43. The Plaintiffs believe that Ordinance No. 12418 is facially invalid for two
reasons, both of which violate section 166.041, Florida Statutes, pertaining to the creation of
municipal ordinances.
44. First, Section 166.041(2), Florida Statutes, sets forth the single -subject
requirement of the Florida Constitution and mandates that a title of an ordinance must be
consistent with the body of same. Specifically, Section 166.041(2), Florida Statutes, states as
follows:
166.041 Procedures for adoption of Ordinances and
Resolutions—
(2) Each ordinance or resolution shall be introduced in
writing and shall embrace but one subject and matters
properly connected therewith. The subject shall be clearly
stated in the title. No ordinance shall be Proposed or
amended by reference to its title only. Ordinances to revise
or amend shall set out in full the Proposed or amended act
or section or subsection or paragraph of a section of
subsection.
See § 166.041 (2), Florida Statutes (emphasis added).
45. Herein, the Plaintiffs believe that Ordinance No. 12418 is invalid because its title
is inconsistent with the body of same. Again, as mentioned above, the CITY's Ordinance No.
12418, which purportedly changed the zoning for the Property, has a title which suggested that it
changed the zoning classification from . . "(R-2) Duplex Residential (0) Office and SD-2 to R-
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BILZIN SUMBERG BAENA PRICE & AXELROD LLP
200 SOUTH EBSCA'NE BOULEVARD, SUITE 2500 • MIAMI. FLORIDA 33131-5340
Grand Bahamas Development of Village West Corporation, etc., et al.
v. The City of Miami, etc.
2 (R-2) Duplex Residential (0) Office and SD-2 with an NCD-2 overlay for a proposed Grand
Avenue corridor or neighborhood conservation overlay district located in Coconut Grove."
46. However, the body of this Ordinance did not make this change to the zoning
plans. On the contrary, a different and new change was made.
47. Therefore, while the CITY may have tried to rezone the property to 0 or SD-2
and NCD-2 overlay for the Grand Avenue Corridor Neighborhood Conservation Overlay
District, the body of the Ordinance did not apply that zoning category to the Property.
48. Accordingly, not only did this Ordinance not rezone the Property, but it is in fact
an invalid ordinance as a result of the inconsistency, confusion and sheer contradiction between
the title of the Ordinance and the actual operative language in the body of the Ordinance. Under
the requirement of unity of subject of an ordinance expressed in its title, the provisions of an
ordinance must involve no plurality of subjects, and they must not be inconsistent or discordant
with its title. Indeed, the title of the Ordinance is misleading in that it was not sufficiently full
and specific to lead to an inquiry into the body of the ordinance. In fact, the title of the
Ordinance cited a specific zoning change, but that change was not what the CITY enacted.
49. Ordinance No. 12418 also violates the statutory notice requirements of municipal
ordinances as codified in Section 166.041(3), Florida Statutes. Specifically, this section states as
follows:
166.41 Procedures for adoption of Ordinances and
Resolutions—
(3)(C)(2) In cases in which the proposed ordinance changes
the actual list of permitted, conditional, or prohibited uses
within a zoning category, or changes the actual zoning map
designation of parcel or parcels of land involving 10
contiguous acres or more, the governing body shall provide
for public notice and hearings as follows:
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BILZIN SUMBERG BAENA PRICE & AXELROD LLP
200 SOUTH BISCAYNE BOULEVARD, SUITE 2500 • MIAMI, FLORIDA 33131-5340
Grand Bahamas Development of Village West Corporation, etc., et al.
v. The City of Miami, etc.
(a) The local governing body shall hold two advertised
public hearings on the proposed ordinance....
(b) The required advertisements shall be no less than 2
columns wide by 10 inches long in a standard size
or a tabloid size newspaper.....The advertisement
shall be in substantially the following fowl:
NOTICE OF (TYPE OF) CHANGE
The (name of local governmental unit)
proposes to adopt the following ordinance:
(title of ordinance).
A public hearing on the ordinance will be
held on (date and times) at (meeting place).
(c) In lieu of publishing the advertisement set out in the
paragraph, the municipality may mail a notice to
each person owning real property within the area
covered by the ordinance. Such notice shall
clearly explain the proposed ordinance and shall
notify the person of the time, place, and location of
any public hearing on the proposed ordinance.
See § 166.041(3), Florida Statutes.
50. The Plaintiffs maintain that Ordinance No. 12418 is invalid because proper
notice of same was not provided to the public. Notice of a zoning ordinance must be given and
an ordinance is invalid for failure to give the required notice.
51. Herein, the CITY allegedly provided notice of its proposed Ordinance No. 12418
by advertising its title. Indeed, as Ordinance No. 12418 makes clear, it was only the title that
was read at the two readings of same prior to enactment. However, the CITY's notice did not
adequately infonii the public as to what changes were proposed in that the actual change did not
confomi to the proposed change in the notice. Indeed, there was a substantial difference between
the ordinance as enacted and the description in the notice.
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BILZIN SUMBERG BAENA PRICE & AXELROD LLP
200 SOUTH BISCAYNE BOULEVARD, SUITE 2500 MIAMI, FLORIDA 33131-5340
Grand Bahamas Development of Village West Corporation, etc., et al.
v. The City of Miami, etc.
52. The practical effects of same are that the CITY's notice did not give the average
reader reasonable warning that property in which the reader had an interest may be affected by
the proposed zoning change. In fact, many people may have been misled by the CITY's notice.
By way of example and not limitation, CITY's notice failed to even mention the simple fact that
the proposed zoning change would affect permissible height requirements. In essence, by not
enacting that which was provided for in the notice, the CITY deprived interested persons from
the opportunity to learn of the proposed ordinance, study the proposal for any negative or
positive effects they might have if enacted, and give notice so that all interested persons can
attend the hearings and speak out to inform the city commissioner prior to the ordinance's
enactment.
53. Under Florida law, strict compliance with the notice requirements of ordinances is
jurisdictional and a mandatory perquisite to the valid enactment of a zoning measure wherein the
failure to follow the statutory notice requirements renders a zoning ordinance void.
54. Based on the foregoing, there is a bona fide, actual, present and practical need for
a resolution of these interests and a declaration of the respective rights of the parties pursuant to
the Ordinance at question, such declaration deals with a present, ascertained or ascertainable
state of facts and/or present controversy as to a state of facts; the rights of the parties are
dependent upon the facts or the law applicable to the facts; and the antagonistic and adverse
interests are all before the Court by proper process or class representation.
WHEREFORE, the Plaintiffs respectfully request that this Honorable Court enter an
Order adjudicating the respective rights of the Plaintiffs and CITY in connection with the
Ordinance at issue, and specifically, determine as follows:
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BILZIN SUMBERG BAENA PRICE & AXELROD LLP
200 SOUTH BISCAYNE BOULEVARD, SUITE 2500 • YlIA,11, FLORICA 33131-5340
Grand Bahamas Development of Village West Corporation, etc., et al.
v. The City of Miami, etc.
A. That Ordinance No. 12418's title and body are inconsistent and thereby flawed,
invalid and unenforceable;
B. That Ordinance No. 12418 was passed in violation of the notice and
advertisement requirements of Florida law in that proper notice was not provided before the
enactment of same and therefore Ordinance No. 12418 is invalid;
C. That the Plaintiffs are entitled to all other relief that this Honorable Court deems
just, appropriate, and fair.
COUNT II
(Declaratory Relief)
55. The Plaintiffs adopt and incorporate by reference the allegations contained in
paragraphs 1 through 38 of the Complaint as if fully set forth herein.
56. This is a cause of action for declaratory relief.
57. The Plaintiffs bring this cause of action to challenge the validity of Ordinance No.
12418 that threatens the Plaintiffs' rights.
58. Based on the facts as more fully described above, the Plaintiffs and the CITY
have an actual, present, adverse, and antagonistic interest in the enforcement and validity of
Ordinance No. 12418 either in fact or in law.
59. As more fully described above, the Plaintiffs believe that Ordinance No. 12418 is
facially invalid. However, even if somehow found valid, the Plaintiffs believe that Ordinance
No. 12418 is not applicable to them by virtue of the CITY's letter confirming that the Plaintiffs
could construct their project in accordance with the Original Zoning.
60. The CITY has refused to issue the Plaintiffs' plans and penults under the Original
Zoning.
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BILZIN SUMBERG BAENA PRICE & AXELROD LLP
200 SOUTH BISCAYNE BOULEVARD, SUITE 2500 • MIAMI, FLORIDA 33131-5340
Grand Bahamas Development of Village West Corporation, etc., et al.
v. The City of Miami, etc.
61. Based on the foregoing, there is a bona fide, actual, present, and practical need for
a resolution of these interests and a declaration of the respective rights of the parties pursuant to
the Ordinance at question, such declaration deals with a present, ascertained or ascertainable
state of facts and/or present controversy as to a state of facts; the rights of the parties are
dependent upon the facts or the law applicable to the facts; and the antagonistic and adverse
interests are all before the Court by proper process or class representation.
WHEREFORE, the Plaintiffs respectfully request that this Honorable Court enter an
Order adjudicating the respective rights of the Plaintiffs and CITY in connection with the
CITY's confirmation letter as outlined herein, and specifically, determine as follows:
A. That the Plaintiffs are not bound by Ordinance No. 12418 and, instead, are
"grand -fathered in" under the Original Zoning by virtue of Ms. Mcfee's response to Mr.
Wallace's letter dated July 13, 2003; and
B. That the Plaintiffs are entitled to all other relief that the Honorable Court deems
just, appropriative, and fair.
COUNT III
(Temporary and Permanent Injunctive Relief)
62. The Plaintiffs adopt and incorporate by reference the allegations contained in
paragraphs 1 through 38 of the Complaint as if fully set forth herein.
63. This is a claim for temporary and permanent injunctive relief The validity of an
ordinance is determinable in an injunctive suit to restrain its enforcement. The Plaintiffs bring
this remedy to restrain the enforcement of Ordinance No. 12418 that is both invalid and
unconstitutional.
64. As more fully described above, Ordinance No. 12418 is fatally defective in at
least two major respects.
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200 SOUTH ISCAYNE 3CUL2VARD, SUITE 2500 • M111.4,1. FLORICA 3312-534C
Grand Bahamas Development of Village West Corporation, etc., et al.
v. The City of Miami, etc.
65. First, Ordinance No. 12418's title and body are inconsistent. This deficiency
renders Ordinance No. 12418 invalid. Herein, the title of the Ordinance cited a specific zoning
change, but that change was not what the CITY enacted.
66. Secondly, the CITY rendered defective notice by advertising the title of
Ordinance No. 12418, which is not what was ultimately enacted by the CITY. This defective
notification also renders Ordinance No. 12418 defective, flawed, and unenforceable.
67. Based on the deficiencies and flaws of Ordinance No. 12418 which render it
defective, the CITY should be enjoined from enforcing this Ordinance against the Property
owned by the Plaintiffs.
68. The Plaintiffs also have no adequate remedy at law for the CITY's wrongful
conduct because it is well established that real property is unique, making monetary damages
difficult, if not impossible to deteiiiiine. Based on the Plaintiffs' review of the market, the
amount of time that has passed, and the present state of the economy, no reasonably alternate
plan exists, other than the Property, for the Plaintiffs to implement these plans.
69. The Plaintiffs have a substantial likelihood of success on the merits of their claim
for injunctive relief and have a clear right to injunctive relief under these circumstances. As
detailed above, the relief that the Plaintiffs seek is predicated on the Ordinance at issue being
unenforceable and facially invalid. The Plaintiffs will also prevail on the merits of this case by
showing that they detrimentally relied on the confirmation letter from the CITY's zoning
department to their detriment.
70. Considerations of public interest also favor granting preliminary and permanent
injunctive relief in the instant case. The CITY's threatened and existing conduct will frustrate
the Plaintiffs' plans to develop their project, which were all in place and should have been
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BILZIN SUMBERG BAENA PRICE & AXELROD LLP
200 SOUTH 5,SCAYNE BOULEVARD, SUITE 2500 • M1AM,, FLORIDA 33,31-5340
Grand Bahamas Development of Village West Corporation, etc., et al.
v. The City of Miami, etc.
"grand -fathered in" under the predecessor zoning code pursuant to the CITY's continuation of
the Plaintiffs' July 13, 2003 letter. Judicial tolerance or inaction with respect to the CITY's
blatant attempts to change its zoning notwithstanding the Plaintiffs' rights would put into
question a city's right to simply change its zoning without following the law. At stake are the
constitutional rights of real property owners to rely upon existing zoning ordinances, pursuant to
which the Plaintiffs relied to their detriment.
71. It is in the interest of the public and the State of Florida to support the property
rights of individuals and entities, and insure that all people are provided fair and accurate notice
of any zoning changes.
WHEREFORE, the Plaintiffs respectfully request that this Honorable Court enter an
Order against the CITY and grant the following relief:
A. Prohibit the CITY from enforcing Ordinance No. 12418 in its entirety;
B. Prohibit the CITY from enforcing Ordinance No. 12418 against the Plaintiffs;
C. Compel the CITY to adhere to its obligation enacted by its zoning department's
confirmation letter, thereby enjoining the CITY from applying Ordinance No. 12418 to the
Property owned by the Plaintiffs;
D. Enjoin the CITY from applying any successor ordinances to Ordinance No. 12418
to Plaintiffs' Property;
E. Find that the Plaintiffs' building plans and permits shall all be "grand -fathered in"
under the Original Zoning ordinance;
F. Compel the CITY to process the Plaintiffs' Plans pursuant to the Original Zoning;
and
1,75756\19567\ #696693 v I
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1 6
BILZIN BUMBERG BAENA PRICE & AXELROD LLP
200 SOUTH BiSCA,NE BOULEVARD, SUITE 2500 • MIAMI, FLORIDA 33I3-5340
proper.
Grand Bahamas Development of Village West Corporation, etc., et al.
v. The City of Miami, etc.
G. Award the Plaintiffs such other relief as determined by the Court to be just and
COUNT IV
(Equitable Estoppel)
72. The Plaintiffs adopt and incorporate by reference the allegations contained in
paragraphs 1 through 38 of the Complaint as if fully set forth herein.
73. As more fully described above, and based on the CITY's letter from its Zoning
Department, the CITY made a material representation to the Plaintiffs that it would be "grand -
fathered in" under the Original Zoning and that the Plaintiffs could build condominium project in
conformance with the Original Zoning.
74. This misrepresentation is contrary to the CITY's later asserted positions and
representations regarding the Plaintiffs' right to develop the Property in accordance with the
Original Zoning.. The CITY now maintains that the Plaintiffs can only develop their project in
strict compliance with the Proposed Zoning Ordinance No. 12418.
75. However, when the CITY countersigned a letter to the Plaintiffs which indicated
that the Plaintiffs could build and develop their project in compliance with the Original Zoning
ordinance, the Plaintiffs relied upon the CITY's representations to their detriment by incurring
significant expenses to hire appropriate personnel, and design and submit all appropriate building
permits and plans to the CITY.
76. The Plaintiffs relied on the representations of the CITY to their detriment and the
CITY should be equitably estopped to deny the Plaintiffs to develop and build their project
pursuant to the Original Zoning.
77. Based on the foregoing, the Plaintiffs have acquired a vested right to develop and
build their project pursuant to the Original Zoning.
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17
BILZIN SU MIBERG BAENA PRICE & AXELROD LLP
200 50,JTH 5ISCAYNE 5CULEVARD, Su!TE 2500 • M[AMI, FLORID.. 33131-5340
Grand Bahamas Development of Village West Corporation, etc., et al.
v. The City of Miami, etc.
78. Accordingly, if this Ordinance is enforced against the Property owned by the
Plaintiffs, the Plaintiffs will be irreparably harmed by not being able to develop their project in
accordance with the original plans.
79. The CITY's threatened and existing conduct will frustrate the Plaintiffs' plans to
develop their project, which were all in place and should have been "grand -fathered in" under the
predecessor zoning code pursuant to the CITY's confiuination of the Plaintiffs' July 13, 2003
letter. Judicial tolerance or inaction with respect to the CITY's blatant attempts to change its
zoning notwithstanding the Plaintiffs' rights would put into question a city's right to simply
change its zoning without following the law. At stake are the constitutional rights of real
property owners to rely upon existing zoning ordinances, pursuant to which the Plaintiffs relied
to their detriment.
WHEREFORE, the Plaintiffs respectfully request that this Honorable Court enter an
Order against the CITY and find that the CITY is equitably estopped from denying the Plaintiffs
the ability to develop their project in accordance with the Original Zoning, find that the Plaintiffs
have a vested right to build their project in accordance with the Original Zoning, award monetary
damages in excess of $15,000.00, together with any such other and further relief that this
Honorable Court deems just, fair, and proper.
DEMAND FOR JURY TRIAL
The Plaintiffs hereby demands a trial by jury of all issues contained herein that are so
triable.
DATED:
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BILZIN BLIMBERG BAENA PRICE & AXELROD LLP
200 SOUTH BI$CA'NE BOULEVARD, SUITE 2500 • MA2I, F,,CRiDA 33131-534C
1757561195671#696693v I
10/19/04 I 1:22 AM
Grand Bahamas Development of Village West Corporation, etc., et al.
v. The City of Miami, etc.
Respectfully submitted,
BILZIN SUMBERG BAENA PRICE &
AXELROD LLP
Attorneys for Plaintiffs
200 South Biscayne Boulevard
Suite 2500
Miami, Florida 33131-5340
305-374-7580 (Office)
305-374-7593 (Fax)
BY:
Carter N. McDowell
Fla. Bar No. 603236
ADAM F. HAIMO
Fla. Bar No. 0502731
19
BILZIN BUMBERG BAENA PRICE & AXELROD LLP
20C SOUTH BISCAYNE BDLJLEVARD, SUITE 2500 • MIAMI, FLORIDA 23121-5340
EXHIBIT "A"
wallace + perdom,o, Inc.
1257 modina avenue
*oral gables,ll 33134
July 15, 2003
Lis Joyce Wee
Zoning Administrator
or
^iry of Miami Zoning Division
,1 SW a Avenue, 46 Floor
„ rrrui, FL 33130
Gra of
Proposed NCD-2
Grand Avenue Corridor Neighborhood C
Want FL
Dear Ms. McFee,
aware, the Planning Department is sportsorlrig a
uld apply the INCD-2 overlay dfsltldt to ,.
AMIN between Commodore Plaza and
am writing to request written confirmation that a project which is
submitted for Building Perri prior to the affective data of the
proposed NC13-2 Ordinance will be evaluated by the Zoning
Departmgd based on the current zoning classification (Le., the
Permit Applioattan will be 'grendfathered' under the current zoning).
If you are in agreement, pleas indicate by your signature below and
return via fax and men 10 my Oct. If you have ahy ciartdcationa or
correctIons, please indicate by separate letter addressed to my
anent/on,
Very truly your:,
wallace + pardomo,
Mark Wallace
Vice President
4Y •`!.' Ai,�)f 4`I:/ 61.4(h1 yr,I/fa.lii