HomeMy WebLinkAboutSubmittal-Memo-Bert J. Harris IssueCITY OF MIAMI
OFFICE OF THE CITY ATTORNEY
MEMORANDUM
TO: Rafael Suarez -Rivas, Assistant City Attorney
FROM: Allison Hall
DATE: March 12, 2008
RE: Bert J. Harris issue
In February of 2008, the Miami City Commission at a public hearing denied an appeal
made by the Morningside Civic Association, Inc., thereby affirming the decision made by the
zoning board to issue a Class II Special Permit, allowing the proposed construction at
approximately 5101 Biscayne Boulevard. The Commission, however, after examining the
surrounding neighborhood, determined the project as proposed was grossly out of scale
compared to the single family homes surrounding, and conditioned the grant of the permit on a
reduction in height from 90 feet, to 35 feet. Since the appeal was denied the following questions
have arisen in regards to the height limitation.
1. Whether the height limitation of the Biscayne Boulevard Property invokes the Bert J.
Harris Private Property Rights Protection Act, FLA. STAT. § 70.001 (2006)
The state has police power to enact laws reasonably construed as expedient for
protections of the public health, safety, welfare, or morals. State v. Saiez, 489 So.2d
1125, 1127 (Fla.1986). The state's police power embraces regulations designed to
promote the public convenience or the general prosperity or the public welfare as well as
those designed to promote the public safety or the public health. Atlantic Coast Line R.
Co. v. Coachman, 59 Fla. 130, 52 So. 377 (1910). The Legislature is vested with a great
deal of discretion to determine public interest and the measures for its protection. See
Newman v. Carson, 280 So.2d 426 (F1a.1973); McInerney v. Ervin, 46 So.2d 458
(F1a.1950); Scarborough v. Newsome, 150 Fla. 220, 7 So.2d 321 (1942).
Although case law supports that enactment of a new zoning code does not necessarily
constitute a taking or confiscation, if a property owner suffers a resulting limitation in use
of the property, enactment of a new zoning code may violate the Harris Act. FLA. STAT.
§ 70.001 (2006).
The Bert J. Harris Act creates a separate and distinct cause of action for property owners
where governmental regulation has "inordinately burdened the property, but does not
Application No. 03-0309, issued by the Planning Director on July 21, 2004.
ag-9022 t-Subre i tta.
CFlo-frt..t• Hardy
Submitted into the public
record in connection with
item PZ.1 on 05-08-08
Priscilla A. Thompson
City Clerk
amount to a taking under the Florida or federal constitutions." An "inordinate burden" is
defined by the Act, in relevant part, as governmental action limiting the use of real
property "such that the property owner is permanently unable to attain the reasonable,
investment -backed expectation for the existing use of the real property or a vested right to
a specific use" of the property. FLA. STAT. § 70.001(3)(e) (2006).
At issue here would be the inordinately burdensome clause of the Act. The property
owner would have to prove that the "down zoning" by the City of Miami Conunission
rendered the property owner unable to attain any reasonable, investment backed
expectation for the existing use, or a vested right to a specific use. This is unlikely, as the
commission did not remove the Special Class Permit, but simply placed a limitation on
the maximum allowable height of the area. In Graham v. Estuary Properties, the court
determined that reducing the amount of the property to be developed by one-half, did not
so diminish the value of the property or the owner's investment -backed expectations as to
render the exercise of the police power unreasonable. 399 So.2d at 1382.
The Commission has the discretion to reduce the height of a project from the maximum
height permitted by the Zoning. Ordinance. The Petitioner is not entitled as a matter of
right to the tnaximutn height. The 4th DCA has held it is appropriate to restrict the height
of a project to make it compatible with the existing adjacent neighborhood. Las Olas
Tower Co. v. City of Ft. Lauderdale, 742 So 2d 308, 313-314 (Fla. 4th DCA 1999). See
also Battaglia Properties v. Florida Land and Water Adjudicatory Commission, 629 So.
2d 161 (Fla. 5th DCA 1993) (recognizing that 35 feet is an appropriate height for a
development sited in a primarily residential neighborhood).
Moreover, the plain statutory language establishing the maximum height limitation of 95
feet in section 609.8.1 makes clear that it is a maximum and not a minimum entitlement
under the City of Miami Zoning Ordinance.
Section 609.8.1 states in relevant part:
Notwithstanding Section 915.1.1 the height limitations established
herein below shall be the maximum permissible height allowed.
All rooftop mechanical equipment and other rooftop structures, as
specified in Sec. 915.1, including rooftop amenities, shall comply
with the height limitations set forth in this section.
For all remaining properties:
Nonresidential: Eighty-five (85) feet (seven (7) floors) maximum.
Residential and mixed use structures containing a residential
component: Ninety-five (95) feet (eight (8) floors) maximum.
This maximum limitation does not grant developers carte blanche to build to the
maximum on every piece of property. Since a permit application must satisfy all other
relevant requirements of the zoning Ordinance as well, the Commission was entitled to
determine, based on the evidence before it, that in order to meet the requirements of
Submitted into the public
record in connection with
item PZ.1 on 05-08-08
Priscilla A. Thompson
City Clerk
section 1305 of the Zoning Ordinance, Petitioner needed to reduce the height of its
building. See, City Council ofthe City of North Miami Beach v. Trehor Construction
Corp., 277 So 2d 8.52 ( fILL. 3' DCA 1973) (in addition to the height limitations, building
p[Lins must comply with all other zoning codes and restrictions). Furthermore, Article 23,
§ 2301 of the Zoning Ordinance specifically provides that: "In their interpretation and
application, the provisions of this zoning ordinance shall be held to minimum
requirements or maximum limitations, as the case may be, adopted for the promotion of
the public health, safety, morals or general welfare." The meaning of maximum height
restriction as defined in Ballentine's Law Dictionary, is "[a] limitation in linear
measurement or by a stated number of stories, placed upon the height of buildings within
a definite area by restrictive covenant." 20 Am. Jur. 2d Covenants § 263 (2008).
Additionally, the burden of proving compliance with the § 1305 design criteria standards
rests with the developer. Hernandez -Canton v. Miami City Com,n'n, 971 So.2d 829
(Fla. 3`d DCA 2007) ("[i]n order for the developer's application to be approved, it [is]
necessary for the developer to demonstrate compliance with the new version of Section
1305").
The City Commission did consider sections 1305 and 1306 of the Zoning Ordinance in
making its decision, and accordingly, the circuit court affirmed the Commission's
decision. In accordance with its Zoning Ordinances, the City Commission imposed a
height restriction on the development to ensure it conformed to the standards of section
1305.2
Before approving the permit, the Commission was required to determine whether
Petitioner's project would "respond to the physical contextual environment taking into
consideration urban form and natural features," "respond to the neighborhood context,"
and create a transition in bulk and scale." The Commission determined that the project as
proposed, failed to meet these standards, and was required to consider whether the project
could be modified to meet them, and, if so, how. Section I306 of the Zoning Code states
in pertinent part:
The agent, agency, or body of the City designated by this zoning
ordinance as having responsibility for issuance or denial of each of
the classes of special permits set out in this Article 13 shall have
authority to attach to the grant of any such special permit such
conditions and safeguards as may be necessary for the purposes of
this zoning ordinance in the particular case.
The evidence before the Commission clearly showed that the "neighborhood context"
was single-family or small commercial structures, and that Petitioner's proposed project
of 92 feet would be adjacent to these single family homes with a rear setback of only 5
2 Article 20 of the Zoning Ordinance clearly gives the Commission the authority to impose such a
condition. When reviewing the Zoning Board's decision on appeal "[t]he city commission on review
shall have full power to affirm, reverse, or modify the action of the zoning board."
Submitted into the public
record in connection with
item PZ.1 on 05-08-08
Priscilla A. Thompson
City Clerk
feet. The Commission was therefore entitled to consider the height of the adjacent,
single-family historic homes in arriving at its height determination of 35 feet.
Other Courts have recognized that City Commissions are entitled to make judgments
about neighborhood compatibility in determining whether permits are appropriate with
respect to height and density. In Las Olas, supra, the City of Ft. Lauderdale required that
a project be reduced in height from the maximum permitted under the zoning code in
order to make it compatible with the existing neighborhood. In upholding the
determination, the Fourth District stated:
[One] of the criterion [in the zoning code] is that the development
be compatible with, and preserve the character of, the adjacent
neighborhoods, residential as well as commercial. This
requirement of neighborhood compatibility and preservation
requires a consideration of several i'actors, including scale, mass,
location size and height of the proposed project." Id. at 313-314.
Research of case law returned no case upholding an award issued under the Harris Act. In
Battaglia Prop., Ltd. v. Fla. Land and Water Adjudicatory Comm'n, 629 So.2d 161
(Fla. 5th DCA 1993), the court held the conditions imposed on the development
agreement were necessary to make the project compatible with its surroundings and not
threaten the balance for the surrounding areas. Also, in Holmes v. Marion County, 960
So. 2d 828 (Fla. 5th DCA 2007) the court denied owners' claim for damages under the
Bert Harris Act, because county issuance of a time -limited permit did not create a
reasonable expectation that the specially permitted use would continue indefinitely.
2. Whether transferable development rights alleviate the Bert J. Harris issue?
TDR programs have been enacted in downtown business districts to promote flexible and
efficient land use in urban redevelopment. TDR programs have been thought desirable or
necessary in order to lessen the negative economic impact on the owners of lands whose
development rights are severely restricted in furtherance of these regulatory goals.
Rathkopfs The Law of Zoning and Planning, RLZPN § 59:2 (2007).
If the enacted regulation permits most existing uses of the property, and provides a
mechanism whereby individual landowners may obtain a variance or a transfer of
development rights, the regulation does not deny individual landowners all economically
viable uses of their property. Glisson v. Alachua County, 558 So.2d 1030 (Fla. 1" DCA
1990). In this case, the court acknowledged that the county regulations diminished the
economic value of the property; however, diminution in value is not the test. Rather, a
challenger must demonstrate denial of all or a substantial portion of the beneficial uses of
the property. Id. City of Riviera Beach v. Shillingburg, 659 So.2d 1174 (Fla. 4th DCA
1995), a regulatory takings case, the court explained that the denial of use of some of a
landowner's property does not itself constitute an unlawful taking, because the property
must be considered in its entirety. In determining if a portion of the land should be
Submitted into the public
record in connection with
item PZ.1 on 05-08-08
Priscilla A. Thompson
City Clerk
considered as a whole or treated separately, the factors to be considered are whether the
land is contiguous and whether there is unity of ownership. Id. at 1183. Palm Beach
Polo, Inc. v. Vill. of Wellington, 918 So.2d 988 (Fla. 4`I' DCA 2006), the court rejected a
claim for damages ensuing from a developing agreement requiring that a developer
preserve a natural wetland where the agreement allowed for the transfer of density to the
remaining parcel for development.
In conclusion, the Bert J. Harris Act has little or no practical applicability for property
owners. As of yet, no awards have been sustained under any action brought under this statute.
However, if the property owner were to initiate a claim, it is unlikely any court would find in
their favor. To be successful a petitioner must prove a governmental action that limits the use of
real property as to amount to a permanent deprivation of any reasonable, investment -backed
expectation for the existing use or a vested right to a specific use. Since the Commission has
only limited the height attributed to the }project`, and not eliminated the project all together, a
Bert J. Harris action cannot arise. In addition, if the Commission were to grant to the property
owner transferable development rights, the negative economic impact on the owners of lands
whose development rights are restricted would be lessened.
Submitted into the public
record in connection with
item PZ.1 on 05-08-08
Priscilla A. Thompson
City Clerk
Pursuant to a valid exercise of police power and applicable zoning laws