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HomeMy WebLinkAboutSubmittal-1CITY OF MIAMI CODE ENFORCEMENT BOARD CITY OF MIAMI Plaintiff vs. 2Z ' FLORIDA BOARDING HOME, INC., A Florida For -Profit Corporation Defendant CEIVtLI kr,4l ij 7 Z894 Case No.: CR: 0321614; 0321615; 0321613; 0321313; 0321612 ORDER The Matter came to be heard at the hearing on February 20, 2004, concerning violations of the City of Miami Code and the City of Miami Zoning Ordinance for the properties located at 1800 S.W. 11 Terrace, 1895 S.W. 11 Terrace, 1144 S.W. 19 Avenue, 1024 S.W. 19 Avenue, 1026 S.W. 19 Avenue (subject properties), the parties submitted their written closing arguments on March 12`h and 22"d respectively, and the Special Master having heard all interested parties, reviewed the record, and otherwise being duly advised in the premises, finds as follows: 1. The Defendant raised the issue of whether the City Ordinances violate the Fair Housing Amendment Act. This tribunal has jurisdiction to determine violations of City Ordinances and therefore cannot rule on this issue. 2. . The Defendant's Motion for Directed Verdict is denied. A. 1800 S.W. 11 Terrace, Miami, Florida 1. On September 29, 2003, the subject property was issued a Notice of Violation by the City of Miami for violations of: 1 SUBMITTED INTO THE PUBLIC RECORD FOR ITEM vz. aaON a-aLl-os. or a. City Code Section 10-3 South Florida Building Code Section 305.2 and Florida Building Code Section 104 and 105 - work completed without a finalized permit, interior remodeling, and addition of rooms. b. Zoning Ordinance Article 9 Section 917.1 - failure to provide required off street parking. c. Zoning Ordinance 6871, Article VI Section 1; Ordinance 9500 Section 300 and Schedule of District Regulations; Zoning Ordinance 11000 Section 300 and 400 - use not allowed in zoning district. d. Zoning Ordinance 9500 scheduled district regulations and Section 2034; Ordinance 11000 Section 300, 400 and 934 and Ordinance 6871 Section 43 and 45 - failure to provide proper distance between facilities. e. Zoning Ordinance 9500 Section 300 and 400 and 2034; Ordinance 11000 Section 300, 400 and 934, Ordinance 9500 Section 2034; Ordinance 11000 Section 934 - facility changed ownership and has not obtained a Class B Special Permit exception or special exception spend by the commission. f. Ordinance 9304 amending Ordinance 6871 - population of facility comprises more than allowable percentage according to census tracks. 2. Said Notice directed the violator to correct said violations by October 16, 2003. 3. ' The parties entered into a Stipulation of the following facts: a. The subject property was built in 1925. b. At the time the subject property was built it contained 4 + 1 bedrooms, 1 2 Submitted Into e p W+ h record in connection item Z'!} son Priscilla A. Thompson ty Gierk • to c. Family Boarding Home, Inc. was registered and incorporated with the State of Florida on January 10, 1984. d. In April 19, 1984, ownership of the real estate was transferred from Daphne Buchanan to Family Boarding Home, Inc. e. The subject property at the time of its licensure by the State of Florida had 12 residents. f. November 1988, the subject property changed ownership from Family Boarding Home, Inc. to All Boarding Horne, Inc. g• In 1990, the subject property changed ownership from All Boarding Home, Inc. to Family Boarding Home, Inc. h. The subject property is located in a single family residential district (R-1). i. The subject property is currently being used as an assisted living facility and is licensed by the State of Florida. j. The subject property currently has 11 residents. k. The subject property currently has 7 bedrooms, 2 bathrooms and 1 kitchen. 4. The City conceded that due to this facility being licensed for 7 to 14 residents, there is no need for the facility to meet the parking requirements of the City of Miami Codes pertaining to community based residential facilities. Hearing Transcript Page 18. B. 1144 S.W. 19 Avenue, Miami, FL 1. On September 29, 2003, the subject property was issued a Notice of Violation by the City of Miami for violations of: Submitted Into the public record in connection with - 3 - item Pz. sz on a -, 4--or Priscilla A. Thompson City Clerk i r1 a. City Code Section 10-3 South Florida Building Code Section 305.2 and Florida Building Code Section 104 and 105 - work completed without a finalized permit, interior remodeling, and addition of rooms. b. Zoning Ordinance Article 9 Section 917.1 - failure to provide required off street parking. c. Zoning Ordinance 6871, Article VI Section 1; Ordinance 9500 Section 300 and Schedule of District Regulations; Zoning Ordinance 11000 Section 300 and 400 - use not allowed in zoning district. d. Zoning Ordinance 9500 scheduled district regulations and Section 2034; Ordinance 11000 Section 300, 400 and 934 and Ordinance 6871 Section 43 and 45 - failure to provide proper distance between facilities. e. Zoning Ordinance 9500 Section 300 and 400 and 2034; Ordinance 11000 Section 300, 400 and 934, Ordinance 9500 Section 2034; Ordinance 11000 Section 934 - facility changed ownership and has not obtained a Class B or, special permit, special exception approved by the Commission. f. City Code Section 10-23, 10-24 failure to maintain exterior of commercial or residential property. g. Ordinance 9304 amending Ordinance 6871 - population of facility comprises more than allowable percentage according to census tracks. 2. Said Notice directed the violator to correct said violations by October 16, 2003. 3. The parties entered into a stipulation of the following facts: ject-property was built in 1926. -4 Submitted into the public record in connection with item P2.sa on ?"-sy-°s Priscilla A. Thompson City Clerk • b. At the time the subject property was built it contained 3 bedrooms, 1 -bathroom and 1 kitchen. c. Family Boarding Home, Inc. was registered and incorporated with the State of Florida on January 10, 1984. d. In April 19, 1984, ownership of the real estate was transferred from Daphne Buchanan to Family Boarding Home, Inc. e. The subject property at the time of its licensure by the State of Florida had 12 residents. f. November 1988, the subject property changed ownership from Family Boarding Home, Inc. to All Boarding Home, Inc. g• In 1990, the subject property changed ownership from All Boarding Home, Inc. to Family Boarding Home, Inc. h. The subject property is located in a single family residential district (R-1). i. The subject property is currently being used as an assisted living facility and is licensed by the State of Florida. j. The subject property currently has 9 residents. k. The subject property currently has 5 bedrooms, 2 bathrooms and 1 kitchen with a sink, cabinets, refrigerator, microwave and stove. 4. The City conceded that due to this facility being licensed for 7 to 14 residents, there is no need for the facility to meet the parking requirements of the City of Miami Codes pertaining to community based residential facilities. Hearing Transcript Page 18. Submitted Into the public - 5 - record in connection with item P2. sa. on Priscilla A. Thompson City Clerk • C. 1895 S.W. 11 Terrace, Miami, FL 1. On September 29, 2003, the subject property was issued a Notice of Violation by the City of Miami for violations of: a. City Code Section 10-3 South Florida Building Code Section 305.2 and Florida Building Code Section 104 and 105 - work completed without a finalized permit, interior remodeling, and addition of rooms. b. Zoning Ordinance Article 9 Section 917.1 - failure to provide required off street parking. c. Zoning Ordinance 6871, Article VI Section 1; Ordinance 9500 Section 300 and Schedule of District Regulations; Zoning Ordinance 11000 Section 300 and 400 - use not allowed in zoning district. d. Zoning Ordinance 9500 scheduled district regulations and Section 2034; Ordinance 11000 Section 300, 400 and 934 and Ordinance 6871 Section 43 and 45 - failure to provide proper distance between facilities. e. Zoning Ordinance 9500 Section 300 and 400 and 2034; Ordinance 11000 Section 300, 400 and 934, Ordinance 9500 Section 2034; Ordinance 11000 Section 934 - facility changed ownership and has not obtained a Class B or, special permit, special exception approved by the Commission. f. Ordinance 9304 amending Ordinance 6871 - population of facility comprises more than allowable percentage according to census tracks. 2. Said Notice directed the violator to correct said violations by October 16, 2003. 3. ' The parties entered into a stipulation of the following facts: ec• property was built in 1934. 6 Submitted into the public record in connection with item Pz.24. on s•?Al -oc Priscilla A. Thompson City Clerk • b. At the time the subject property was built it contained 6 plus 2 bedrooms, 3.5 bathrooms and 1 plus 1 kitchens and 1 garage. c. Family Boarding Home, Inc. was registered and incorporated with the State of Florida on January 10, 1984. d. In April 19, 1984, ownership of the real estate was transferred from Daphne Buchanan to Family Boarding Home, Inc. e. The subject property at the time of its licensure by the State of Florida had 10 residents. f. November 1988, the subject property changed ownership from Family Boarding Home, Inc. to All Boarding Home, Inc. g. In 1990, the subject property changed ownership from All Boarding Home, Inc. to Family Boarding Home, Inc. h. The subject property is located in a single family residential district (R-1). The subject property is currently being used as an assisted living facility and is licensed by the State of Florida. j• The subject property currently has 16 residents. k. The subject property currently has 9 bedrooms, 4.5 bathrooms and 1 kitchen with a sink, counter and 1 refrigerator. 1. The garage was converted to a living unit. D 1024 S.W. 19 Avenue, Miami, FL 1. On September 29, 2003, thz. subject property was issued a Notice of Violation by the City of Miami for violations of: 7 Submitted Into the public record in connection with item Pz. sz on P. .yy -Os Priscilla A. Thompson City Clerk • • a. City Code Section 10-3 South Florida Building Code Section 305.2 and Florida Building Code Section 104 and 105 - work completed without a finalized permit, interior remodeling, and addition of rooms. b. Zoning Ordinance Article 9 Section 917.1 - failure to provide required off street parking. c. Zoning Ordinance 6871, Article VI Section 1; Ordinance 9500 Section 300 and Schedule of District Regulations; Zoning Ordinance 11000 Section 300 and 400 - use not allowed in zoning district. d. Zoning Ordinance 9500 Scheduled District Regulations and Section 2034; Ordinance 11000 Section 300, 400 and 934 and Ordinance 6871 Section 43 and 45 - failure to provide proper distance between facilities. e. Zoning Ordinance 9500 Section 300 and 400 and 2034; Ordinance 11000 Section 300, 400 and 934, Ordinance 9500 Section 2034; Ordinance 11000 Section 934 - facility changed ownership and has not obtained a Class B or, special permit, special exception approved by the Commission. f. City Code Section 10-23, 10-24 failure to maintain exterior of commercial or residential property. g. Ordinance 9304 amended Ordinance 6871 - population of facility comprises more than allowable percentage according to census tracks. 2. Said Notice directed the violator to correct said violations by October 16, 2003. 3. The parties entered into a stipulation of the following facts: a. The subject property was built in 1926. 8 Submitted Into the public record in connection with item 'Pe • > - on a •mot- es Priscilla A. Thompson City Clerk b. At the time the subject property was built it contained 3 bedrooms, 2 bathrooms and 2 kitchens. c. Family Boarding Home, Inc. was registered and incorporated with the State of Florida on January 10, 1984. d. In April 19, 1984, ownership of the real estate was transferred from Daphne Buchanan to Family Boarding Home, Inc. e. The subject property at the time of its licensure by the State of Florida had 15 residents or more. f. November 1988, the subject property changed ownership from Family Boarding Home, Inc. to All Boarding Home, Inc. g• In 1990, the subject property changed ownership from All Boarding Home, Inc. to Family Boarding Home, Inc. h. The subject property is located in a single family residential district (R-1). i. The subject property is currently being used as an assisted living facility and is licensed by the State of Florida. j. The subject property currently has 15 or more residents. k. The subject property currently has 10 bedrooms, 3 bathrooms and no kitchen. ISSUES 1. Whether the subject properties violate the City of Miami Code Sections as cited in the Notices of Violation issued on September 29, 2003? 2. conformance with the City of Miami Zoning requirements? 9 Whether the City of Miami is estopped from finding that the subject properties are not in Submitted Into the public record in connection with item 'P2 - yy on - - - es Priscilla A. Thompson City Clerk • 3. Whether the City of Miami is barred by laches for failure to enforce the City of Miami Code and the City of Miami Zoning Ordinances? ISSUE 1 Whether the subject properties violate the City of Miami Zoning Code and the City of Miami Code as cited in the Notices of Violation issued on September 29, 2003? ISSUE 1.A. - POPULATION IN EXCESS OF CENSUS TRACKS The City of Miami has dismissed charges as to this issue as to all subject properties. Hearing Transcript Page 18. ISSUE 1.B. - WORK COMPLETED WITHOUT A PERMIT The City charged the Defendants with violations of City Code. Section 10-3, South Florida Building Code Section 305.2 and the F1o:ida Building Code Section 104 and 105 for work completed without a finalized permit, interior remodeling, and addition of rooms. The City has the burden to prove that no permits were issued. The City failed to meet this burden. ISSUE 1.C. — DISTANCE REQUIREMENTS Pursuant to the agreement of the parties, this issue is stayed and will be reassessed following the ruling herein. Hearing Transcript Pages 12, 13 and 14. ISSUE 1.D. — PARKING REQUIREMENTS Pursuant to the agreement of the parties, this issue is stayed with respect to the subject properties located at 7 895 SW 11 Terrace, 1024 SW 19 Avenue and 1026 SW 19 Avenue, and will be reassessed following the ruling herein. Hearing Transcript Pages 12,13, and 14. ISSUE 1.E. — FAILURE TO MAINTAIN FA(ADE The City of Miami has dismissed charges as to this issue as to all subject properties. Hearing Transcript Page 18. Submitted Into the public -10 - record in connection with item Pz . -.- on - xhos Priscilla A. Thompson City Clerk • ISSUE 1.F. - CHANGE OF OWNERSHIP The change of ownership required the application for and granting of a Class B Special Permit or a special exception. In this case, the ownership of the properties changed in November 1984, from Daphne Buchanan to Family Boarding Home, Inc. In November 1988, the subject properties changed ownership from Family Boarding Home, Inc. to All Boarding Home, Inc. In January 1990, the subject properties changed ownership from All Boarding Home, Inc. to Family Boarding Home, Inc. The transfer of stock in 2002/2003 is not considered.a change of ownership of the subject properties. The records reflect that no Class B Special Permit or Special Exception was ever applied for or granted for the subject properties. ISSUE 1.G. - USE NOT ALLOWED IN R-1 ZONING DISTRICT Community based residential facilities with more than 6 residents are not permitted in the R1 zoning district. Ordinance 6871, 9500, 11000. Florida Statutes Chapter 419.001 entitled "Site Selection of Community Residential Homes" Subsection (10) provides that the siting of community residential homes in the area zoned for single family shall be governed by local zoning ordinances. While a community based residential facility containing 7 to 14 residents constitutes a single am. family under the Statute.(419.0Di (1 a , the City is given the authority to govern the location of said facilities. In this case, the City of Miami Codes provide that community based residential facilities with more than,6 residents cannot be located within an R-1 zoning district. ISSUE 2 Whether the City of Miami is estopped from finding that the subject properties . are not in conformance with the City of Miami Zoning requirements? Submitted Into the public record in connection with item E ,zz on act- oc Priscilla A. Thompson City Clerk • The Defendant's position is that the City is estopped from enforcing its zoning ordinance due to the fact that certificates of use have been issued to the subject properties for many years as community based residential facilities, also known as adult congregate living facilities. The elements necessary to establish estoppel are: 1. Representation as to a material fact that is contrary to a later asserted position. 2. A reliance upon that representation. 3. A change in position detrimental to the party claiming estoppel caused by the representation and reliance, Sun Cruz Casinos LLC vs. City of Hollywood Florida, 844 So.2d 681 (Fla. 4th DCA, 2003). The Court in Sun Cruz stated the general rule as "...the doctrine of equitable estoppel may be invoked against the municipality as if it wasn't as individual." Hollywood Beach Hotel Co. vs. City of Hollywood, 329 So. 2d 10, 15 (Fla. 1976). The First District Court of Appeals in Alachua County vs. Cheshire, 603 So. 2d 1334 (Fla. 1 DCA, 1992) held that "...the theory of estoppel requires affirmative conduct by the governmental agency, not merely negligence". In this case, not only did the City continue to issue certificates of use and building permits for the subject properties, the City confirmed to state regulatory agencies on numerous occasions that the subject properties conformed with the zoning regulations of the City of Miami. In addition, on several occasions, the zoning administrator sent correspondence to the owners/managers of the subject properties advising them that there was no current certificate of use for these "community based residential facility" and further instructed that the applications for said certificates of use be made annually. Defendant's Exhibits 2, 3, 4, 14E, A5E, 16E, 17F, 14F, 16F, 17G, 17H, 17I. It is clear from theevidence that the City knew of the zoning violation of the use of these_ facilities. 1 -12 - Submitted Into the public record in connection with item Pz. on z-2-1-or Priscilla A. Thompson City Clerk The Defendant relied upon the City's memos, certificates of use issued since at least 1982 as well as various building permits in their decision to purchase the stock of Florida Boarding Homes. The Defendant has incurred substantial costs in reliance upon the City's public records in the purchase of the stock. The Courts have held that "ordinarily, a governmental entity may not be estopped from the ' enforcement of its ordinances by an illegally issued building permit". Corona Properties of Florida vs. Monroe County, 485 So.2d 1314 (Fla. 3 DCA, 1986). Further, the City of Miami Ordinances, which are a part of this record, provide that a certificate of use issued in error shall not confer any rights to occupancy. Section 3408, Zoning Ordinance 9500; Section 2107, Zoning Ordinance 11000. In this case however, the certificates of use and building permits have been issued for many years and occupancy has occurred during all of those years. The City cannot now claim that there was no right to occupancy. The Defendant was and is entitled to rely on the assurances and commitments of the governmental authorities and, while the government entity may not be estopped from the enforcement of its ordinances by an illegally or inadvertently approved permit or certificate of use, in this case, the subject properties have been allowed to operate in single family residential districts since at least 1982. ISSUE 3 Whether the City of Miami is barred by laches to enforce the City of Miami Code and the City of Miami Zoning Ordinances. The Defendants claim that the City is barred under the doctrine laches from enforcing the stated ordinances as they apply to_the subject properties. ubmid record in conn46tinf with item A iz on z - >44 - os Priscilla A. Thompson City Clerk • • A defendant who seeks to assert the affirmative defense of laches must prove the following by clear and positive evidence: 1. Conduct on the part of the defendant giving rise to the situation of which the complaint is made; 2. Failure of the plaintiff having had knowledge or notice of defendant's conduct to assert its ' rights by a suit; 3. Lack of knowledge on the part of the defendant that the plaintiff will assert the right on which it bases its suit; and 4. Injury of prejudice to the defendant in the event relief is accorded to the plaintiff. The first element, conduct on the part of the defendant giving rise to the situation of which the complaint is made, is proven by virtue of the violations. The second element, failure of the plaintiff having had knowledge or notice of defendant's conduct to assert its rights by a suit, has been proven as the City, having much prior knowledge of the uses of the subject properties since at least 1982, failed to assert its right by a suit until September 2003. The third element, lack of knowledge on the part of the defendant that the plaintiff will assert the right on which it bases its suit, is proven by the evidence that the current Defendant, as well as previous owners of the subject properties, would have no knowledge or reason to believe that the City would assert its rights since it had not done so since at least 1982 and had confirmed compliance of its zoning laws to state regulatory agencies. While it is true that by virtue of publication of the City of Miami Ordinances, the Defendant has constructive notice of the ordinances and presumably the nature and extent of the powers of the governmental agency who issued the certificates of use, in this case, City failed to take any action as to the use of the subject properties since at least 1982. Submitted Into the public -14 - record in connection with item P 2 _ a-.- on z - )l s Priscilla A. Thompson City Clerk • • Also, although, as a general rule, there is no statute of limitations as to the enforcement of City ordinances, the fact that the City has failed to take any action as to the use of the subject properties since at least 1982, acts as a bar to enforcement. The subject properties have been operating as community based residential facilities since at least 1982. It is also clear from the evidence that the City knew of the zoning violation of the use of these facilities. The evidence shows that the zoning administrators and various other city personnel knew that these facilities were located in R-1 zoning districts and that they were being operated as community based residential facilities. The City cannot now assert that Family Boarding Homes should have known that the City would have enforced their rights under the ordinances. The fourth element, injury of prejudice to the defendant in the event relief is accorded to the plaintiff, is also proven. The Defendant in this matter paid a substantial amount of money to purchase the stock in the corporation which owns the subject properties. Based upon the evidence and testimony, diligent searches of the City's records were conducted and relied upon in consideration for the purchase of the stock. The Defendant has met the burden of establishing the four elements of !aches by clear and positive evidence as applied to the use of the subject properties in R-1 zoning districts. Cases have held that the mere purchase of land does not create a right to rely on existing zoning. In this case however, the current Defendant, who purchased the stock of the prior owner, relied in good faith upon 'the continual issuance of certificates of use and building permits with regard to the subject properties. In this case, the ownership of the properties changed in November 1984, from Daphne Buchanan to Family Boarding Home, Inc. In November 1988, the subject properties changed ownership from - 15 - Submitted Into the public record in connection with item P2- on }- Yy-os Priscilla A. Thompson City Clerk • ownership from All Boarding Home, Inc. to Family Boarding Home, Inc. Plaintiffs Composite Exhibit 1- 6A-D, 7A 7B; Composite Exhibit 2-5 A-D, 6A-B; Composite Exhibit 3-6A-D, 7A-B; composite Exhibit 4-5A-D, 6A-B. The transfer of stock in 2002/2003 is not considered a change of ownership of the subject properties. The new owners of the properties had the obligation to advise the City of the change in ownership and apply for a Special Exception or a Class B Special Permit. Ordinance 9500, Section 2034.3; Ordinance 11000, Section 934.3. The City would have no way to know if a change of ownership occurred without notice from the new owners. In this case, the Defendant knew or should have known that the City would assert its rights as to the change of ownership once the City became aware of the changes. It is not reasonable that the Defendant would not have been aware of this requirement and the City's right and intention to enforce it once it gained knowledge and notice of the violation. FINDINGS 1. The subject properties are in violation of the City of Miami ordinances with respect .to their use in the R-1 zoning district by virtue of the part that all properties have more than 6 residents. 2. The subject properties are in violation of the City of Miami ordinances for the failure to apply for and obtain a Special Exception or Class B Special Permit. 3. There is no violation as to the alleged work being completed without a permit. 4. The City is barred from enforcing the violations as to use in R-1 zoning districts of the City of Miami ordinances under the doctrine of !aches. 5. The City is estopped from enforcing the violations as to use in R-1 zoning districts against the subject properties. 6. f The parking requirements are to be determined in accordance with City ordinances. The distance requirements are to be determined in accordance with City ordinances.::. -16 - Submitted Into the public record in connection with item pz . s P• on .2 -mil -os Priscilla A. Thompson City Clerk 2004. Copies Furnished to: • • 8. The Defendant is in violation of City of Miami Ordinances for failure to apply for and obtain a Special Exception or Class B Special Permit upon the change of ownership. 9. The Defendant must apply for a Class B Special Permit or Special Exception within 30 days of this order. 10. To comply with Florida Statutes, the Defendant must decrease the number of residents in the subject properties located at 1895 S.W. 11 Terrace, 1024 S.W. 19 Avenue, and 1026 S.W. 19 Avenue to between 7 to 14 within 30 days of this Order. The subject properties located at 1800 S.W. 11 Avenue and 1144 S.W. 19 Avenue shall not increase the current number of residents of 11 and 9, respectively. DONE AND ORDERED in Miami, Miami -Dade County, Florida, on this q day of r' / i i�, ./JA, P \,.Mab/Ann -L-trl<acs Spectral Master Elsa Jaramillo-Velez, Esquire, Assistant City Attorney, City of- iami Neil Chonin, Esquire, Counsel for Defendant Teresita Fernandez, Chief, Hearing Boards, City of Miami Armando Bucelo, Esquire, Counsel for Special Master -17- Submitted Into ttie pubic record in connection with item pz. p.z on -'4- os Priscilla A. Thompson City Clerk