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Home My WebLink AboutMemo - Office of the City AttorneyCITY OF MIAMI OFFICE OF THE CITY ATTORNEY MEMORANDUM TO: Nzeribe Ihekwaba, PhD, PE Public Works Director FROM: Victoria Mendez, Assistant City Attorney DATE: March 1, 2013 RE: 3411/3435 NW 7 ST claiming ownership of portions of a 15 foot wide and 10 foot wide public alley Matter ID No.: 13-451 You have written the Law Department and asked us to answer the following question with regard to the closing and vacating of an alley: Can the Director of Public Works ("Director") under the facts set forth by Felix Pardo, AIA, ASID, CSI, which is incorporated by reference herein and set forth in Exhibit A, issue a determination that this particular alley, described as portions of a 15 foot wide and 10 foot wide public alley in the Amended Plat of Douglas Seventh Commercial Center, abutting 3411/3435 NW 7 ST, ("Alley") is presumed to be closed or vacated by the City and is not a public right of way? In short, under the facts summarized below from your Legal Services Request ("LSR"), and several meetings and emails regarding same, summarized below, the Director may, in his professional discretion, make a determination stating, that to the best of his knowledge, information and belief, the Alley, which is the subject of this opinion, is not a public right of way and is presumed to be closed or vacated by the City. If the Director decides to issue such a determination, he may condition it on verification by a surveyor or similar professional and should state that this determination is not to be relied upon by any other party other than the requesting party, Felix Pardo, and the owners of 3411/3435 NW 7 ST, until such time as this Alley is properly closed by Resolution of the Miami City Commission. The facts set forth in your LSR and confirmed by my conversation with you, Mr. Pardo, and other members of staff can be summarized as follows: • Mr. Pardo provided documentation, which we have reviewed, to demonstrate that the City of Miami has recognized the abandonment of the Alley. The documents include the following: • Location map • Copy of Plat Book 25, Page 24 • Survey of property • Site plan • City of Miami building permit dated 1977 • Miami -Dade County property information • 1979, 1980, and 1981 property tax history • 2012 property tax notice • Chain of deeds from 1983 to 2012 • Property title insurance policy. Also, we have taken notice that: • There is an absence of any City action or undertaking relative to claiming the Alley as a viable alley within the City) t • .Permits for structures and improvements encroaching upon the Alley were issued by the City which make it impossible for the Alley to be a fully -functioning. • All the other alleys abutting this location and attached to this Alley have been encroached upon, as is the case with this Alley. Those alleys will be closed and vacated in the future via a City initiative to clean up the Alley by the alternate method in a T3 area pursuant to Chapter 55 of the City Code. • The City has accepted ad valorem taxes for the Alley from the abutting private property for over 30 years. • The county records regarding taxes indicate what development permits and similar approvals the City would have issued at the time in question under the then prevailing City Zoning Ordinance applicable to that period in time. • The county records do not show the existence of the Alley at this time via sketch. Applying the foregoing particular and unique facts relative to the Alley in question here and narrowly limiting our counsel to this specific and express set of facts described herein, it would appear that the City abandoned or vacated, by passage of time and by inconsistent actions, this. Under the applicable subsection of the City Code which provides, in the pertinent part, as follows: A building permit may be issued for construction of a building (other than a one family detached dwelling and customary accessory building), structure or parking lot on a lot, or lots, of record that has been divided into separate parcels, if proof is submitted that said division was described by deed prior to September 25, 1946, or that said division was approved under zoning regulations in effect prior to June 27, 1983. 2 You may accept the aforementioned as a record of development or building permits issued under the then prevailing City Zoning Ordinance. The Director may accept the above referenced Cf. 90.803(10), F.S. (absence of public record admissible as a hearsay exception). ABSENCE OF PUBLIC RECORD OR ENTRY. —Evidence, in the form of a certification in accord with s. 90.902, or in the form of testimony, that diligent search failed to disclose a record, report, statement, or data compilation or entry, when offered to prove the absence of the record, report, statement, or data compilation or the nonoccurrence or nonexistence of a matter of which a record, report, statement, or data compilation would regularly have been made. 2 §55-10(e), City Code. as evidence of such a division; excluding the Alley, as applicable, as accepted by the City prior to June 27, 1983. In conclusion, the Public Works Director may in his discretion, issue a determination in effect by various inconsistent actions and passage of time, among the other factors discussed in this memo, that the City has vacated this particular Alley. Such a determination should be followed by the City Commission declaring the Alley abandoned. The City Commission is the legislative authority which normally widens, enlarges, alters or discontinues a public street or right of way which is held in the public trust.3 3 See §166.042, F.S.; Roney Inv. Co. v. City of Miami Beach, 127 Fla. 773, 174•So. 2d 26 (1937). (q77 CAM` of M rAM �u►�-��n�� P� i .4a me �l •! ff "p r �.l9 soak. rrt r..1,r r..rr. CCT4112LT'•Mr •. 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