HomeMy WebLinkAboutExhibit - City Attorney's MemoEXHIBIT
CITY OF MIAMI
OFFICE OF TITE CITY ATTORNEY
MEMORANDUM
TO: Todd Hannon, City Clerk
FROM: Victoria Mendez, City Attorney
DATE: February 20, 2015
RE: Brownfield Property Designation Notice Requirements and Status of
Various Properties Previously Designated in 2014
Matter ID No.: 15-297
Two questions have been asked by the administration with regard to the previous
Brownfield designations that took place in July 2014:
I . What are the notice requirements for designating a property as a Brownfield?
2. What is the status of the various properties designated as Brownfield in July 2014 (in
the event the notice was not fully compliant with notice requirements for
Brownfield)?
The summation of the answer to the first question is that the quired notice to designate
a Brownfield is prescribed by state law as discussed below.
The summation of the answer to the second question is that a defective notice of a
Brownfield designation must be redone from the outset. Thus, the designations have no force and
effect.
Florida Statutes prescribes the notice requirements for a municipality to designate a
Brownfield.
***
The pertinent subsection of the Florida Statute provides:
Resolution adoption. —The Brownfield area designation must be carried out
by a resolution adopted by the jurisdictional local government, which includes
a map adequate to clearly delineate exactly which parcels are to be included
in the Brownfield area or alternatively a less -detailed map accompanied by a
detailed legal description of the Brownfield area. For municipalities, the
governing body shall adopt the resolution in accordance with the procedures
outlined in s. 166.041, except that the procedures for the public hearings on
the proposed resolution must be in the form established in s. 166.041(3) (c) 2.1
4. Notice and public hearing requirements for designation of a proposed
Brownfield area outside a redevelopment area or by a nongovernmental
entity. Compliance with the ,following provisions is required before
designation of a proposed Brownfield area under paragraph (2)(a) or
paragraph (2) (c,):
1 Cf, 376.80 (1) (c), Fia. Stat,
14-00566 - Exhibit - City Attorney's Memo
Re: Brownfield Property Designation Notice Requirements and
Status of Various Properties Previously Designated in 2014
February 20, 2015
Page 2
a. At least one of the required public hearings shall be conducted as closely
as is reasonably practicable to the area to he designated to provide an
opportunity for public input on the size of the area, the objectives fbr
rehabilitation, job opportunities and economic developments anticipated,
neighborhood residents' considerations, and other relevant local concerns.
b. Notice of a public hearing must be made in a newspaper of general
circulation in the area, must be made in ethnic newspapers or local
community bulletins, must be posted in the affected area, and must be
announced at a scheduled meeting of the local governing body before the
actual public hearing.
(2)(a) Local government -proposed Brownfield area designation outside
specified redevelopment areas.—lf a local government proposes to designate
a Brownfield area that is outside a community redevelopment area, enterprise
zone, empowerment zone, closed military base, or designated Brownfield pilot
project area, the local government shall provide notice, adopt the resolution,
and conduct public hearings pursuant to paragraph (1)(c). At a public
hearing to designate the proposed Brownfield area, the local government
must consider:
***
There are somewhat more relaxed noticing requirements for Brownfield designations
which are located in certain areas: The strict notice requirements do not apply to a proposed
Brownfield area if the local government proposes to designate the Brownfield area inside a
community redevelopment area, enterprise zone, empowerment zone, closed military base, or
designated Brownfield pilot project area and the local government complies with paragraph
(1)(c).2 To our knowledge, the 2014 designations did not occur in a community redevelopment
area, enterprise or empowerment zone, military base or pilot program.
See link to relevant Florida Statute:
376.80. Brownfield program administration process
The Brownfield designations that occurred in 2014 were defective in the following
respects: the properties were not posted as is required by the State Statutes noted above;
normally defects in the notice procedure for enacting an ordinance or other legislative measure
such as a resolution render the ordinance invalid. The Third District Court of Appeal ruled in
invalidating a land development permit to enact certain additional buildings because the notice
required by 166.041, Fla. Stat. was not given.
2 Section 376.80 (2) (b), Fla, Stat,
Doc. No.: 513852
Re: Brownfield Property Designation Notice Requirements and
Status of Various Properties Previously Designated in 201.4
February 20, 2015
Page 3
Such notice is clearly mandatory, and constitutes a jurisdictional condition precedent to
the activation of the City's power to adopt the ordinance at issue. See Ellison v. City of Fort
Lauderdale, 183 So.2d 193 (Fla.1966); City of Fort Pierce v. Davis, 400 So.2d 1242 (Fla. 4th
DCA 1981); Skaggs v. City of Key West, 312 So.2d 549 (Fla. 3d DCA 1975); Bal Harbour
Village v. State ex rel. Gib/in, 299 So.2d 611 (Fla. 3d DCA 1974), cert. denied, 311 So.2d 670
(Fla.1975). In the instant case, there was no newspaper publication or notice of the City
Commission meeting, at which adoption of the ordinance took place. Accordingly, the ordinance
is null and void because the City failed to follow the mandatory notice requirements of Section
166.041(3) (a). See David v. City of Dunedin, 473 So.2d 304 (Fla. 2d DCA 1985); Fountain v.
City of Jacksonville, 447 So.2d 353 (Fla. ld DCA 1984).3
It is well established law that failure of a Florida City to give the required notice will
render the legislative measure void.4 The defectively noticed designations via resolution made in
July 2014 must be re -noticed from the outset. That is, the process must begin anew for all.
Thus, let the records reflect that this legislative action has no force and effect in law.
Please adjust your records accordingly by placing a copy of this memo in your legislative file
(Legistar) next to the legislation so that notice is given to all that there is no Brownfield
designation pursuant to Resolution No. R-14-0303 (see attached).
3 HealthSouth Doctors Hospital Inc. v. Hartnett, 622 So. 2d 146 (Fla. 3rd DCA 1993).
4 White v. Town of Inglis, 988 So. 2d 163(Fla. 1 DCA 2008),
Doc. No.: 51.3852
t
aster 'eport
Enactment Number: R-14-0303
City Hall
3500 Pan American Drive
Miami, FL 33'133
www.miamigov,com
File Number: 14-00566
Version: 1
File Type: Resolution Status: Passed
Reference: Controlling Body: Office of the City
Clerk
File Name: City Parks Brownfield Site Designation
Introduced: 6/16/2014
Requester: Department of Capital Cost: Final Action: 7/24/2014
Improvement
Programs/Transportation
Title: A RESOLUTION OF THE MIAMI CITY COMMISSION, WITH ATTACHMENT(S), DESIGNATING
THE PROPERTIES LOCATED AT 3045 SHIPPING AVENUE, 2795 SOUTHWEST 37TH AVENUE,
3400 GRAND AVENUE, 3349 PAN AMERICAN DRIVE, 4355 SOUTHWEST 42ND AVENUE, AND
140-142 SOUTHWEST I I TH STREET, AS BROWNFIELD SITES WITHIN THE CITY OF MIAMI,
FLORIDA, FOR THE PURPOSE OF ENVIRONMENTAL REHABILITATION AND PURSUANT TO
FLORIDA STATUTES SECTION 376.80, ET. SEQ., WITH OTHER CONDITIONS AS STATED
HEREIN.
Sponsors:
Notes:
Indexes:
Attachments: 14-00566 Summary Form.pdf,14-00566 Notice to the Public.pdf,14-00566 Memo - Designated
Properties,pdf,14-00566 Legislation.pdf,14-00566 Exhibit I ,pdf,14-00566 Exhibit 2.pdf,14-00566
Exhibit 3.pdf,14-00566 Exhibit 4.pdf,14-00566 Exhibit 5.pdf,
History of Legislative File
Version: Acting Body:
Date: Action: Sent To: Due Date: Return Date: Result;
1 Office of the City 7/15/2014 Reviewed and
Attorney Approved
1 City Commission 7/24/2014 ADOPTED
Office of the Mayor
7/29/2014 Signed by the Mayor Office of the City
Clerk
Office of the City Clerk 7/30/2014 Signed and Attested
by City Clerk
Pass
City of
Page .1 Printed on 8/26/2014
City of Miami
Legisfetion
Resolution
City Hall
3500 Pan American
Drive
Miami, FL 33133
v✓ww.miamigov.com
File Number: 1.4-00566 Final Action Date:
A RESOLUTION OF THE MIAMI CITY COMMISSION, WITH ATTACHMENT(S),
DESIGNATING THE PROPERTIES LOCATED AT 3045 SHIPPING AVENUE, 2795
SOUTHWEST 37TH AVENUE, 3400 GRAND AVENUE, 3349 PAN AMERICAN
DRIVE, 4355 SOUTHWEST 42ND AVENUE, AND 140-142 SOUTHWEST 11TH
STREET, AS BROWNFIELD SITES WITHIN THE CITY OF MIAMI, FLORIDA, FOR
THE PURPOSE OF ENVIRONMENTAL REHABILITATION AND PURSUANT TO
FLORIDA STATUTES SECTION 376.80, ET. SEQ., WITH OTHER CONDITIONS AS
STATED HEREIN.
WHEREAS, the properties located at 3045 Shipping Avenue, 2795 Southwest 37th Avenue,
3400 Grand Avenue, 3349 Pan American Drive, 4355 Southwest 42nd Avenue, and 140-142
Southwest 11th Street, Miami, Florida ("Properties"), are owned by the City of Miami ("City"); and
WHEREAS, certain contaminants in excess of the Residential Cleanup Target Levels were
discovered in the soil at 3045 Shipping Avenue, Miami, Florida (Blanche Park), on or about. September
4, 2013, as more particularly described in Exhibit "1", attached and incorporated; and
WHEREAS, certain contaminants in excess of the Residential Cleanup Target Levels were
discovered in the soil at 2795 Southwest 37th Avenue, Miami, Florida (Douglas Park), on or about
November 13, 2013, as more particularly described in Exhibit "1", attached and incorporated; and
WHEREAS, certain contaminants in excess of the Residential Cleanup Target Levels were
discovered in the soil at 3400 Grand Avenue, Miami, Florida (Billy Rolle Park), on or about December
23, 2013, as more particularly described in Exhibit "1", attached and incorporated; and
WHEREAS, certain contaminants in excess of the Residential Cleanup Target Levels were
discovered in the soil at 3349 Pan American Drive, Miami, Florida (Site of Future Regatta Park), on or
about April 26, 2013, as more particularly described in Exhibit "1", attached and incorporated; and
WHEREAS, certain contaminants in excess of the Residential Cleanup Target Levels were
discovered in the soil at 4355 Southwest 42nd Avenue, Miami, Florida (Merrie Christmas Park), on or
about September 20, 2013, as more particularly described in Exhibit "1"; attached and incorporated;
and
WHEREAS, certain contaminants in excess of the Residential Cleanup Target Levels were
discovered in the soil at 140-142 Southwest 11th Street, Miami, Florida (Southside Park), on or about
December 23, 2013, as more particularly described in Exhibit "1", attached and incorporated; and
WHEREAS, the City has already undertaken assessment and remediation of the Properties in
accordance with local and State law; and
WHEREAS, pursuant to Resolution No. 98-242, adopted March 10, 1998; Resolution No.
99-197, adopted March 23, 1999; Resolution No. 05-0117, adopted February 24; 2005; and Resolution
Cite of.1fiarni.
Page 1 of 3 File Id: 14-00566 (version: 1) Printed On: 7/11/2014
Fi/eWumber 14-00566
No. 06-0561, adopted September 28, 2006, the City Commission designated certain areas within the
City to be Brownfield Areas, which contain msoant, b|ighted, or underused property thatrnight be
limited byactual orperceived environmental contamination, as more per-Licular|ydesoribed in Exhibit
"2"' attached and incorporated; and
WHEREAS, the Properties are located outside of the current City Brownfield Area previously
deaignated, shown on the map marked Exhibit"5". attached and incorporated; and
WHEREAS, the City desires 10 designate the Properties as Brownfield sites; and
WHEREAS, the City agrees to rehabilitate and nenn8diahsthe Properties*, and
VVHEREA3, the rehabilitation and redevelopment of the Properties will result in the creation of
recreational areas and parks; and
WHEREAS, the Property use is consistent with the local comprehensive plan and are
permissible uses under the applicable local land development regulations; and
VVHEF{EA3. the Properties are designated as City parks and will remain as City parks; and
WHEREAS, the City has sufficient financial resources to Implement and complete the
rehabilitation agreement and restoration of the Properties; and
WHEREAS, the City has considered the following oh0aha set forth in Florida Statutes Section
370.80(2)/e\ in designating the Properties as Brovvnfie|dS, as more particularly described in Exhibit"4"'
attached and incorporated: (1) whether the Brownfield site warrants economic development and has a
reasonable potential for such aoi(vihss. (2)whether the proposed area to be designated represents e
reasonably focused approach and is not overly large in geographic coverage, (3)vvhethe[the area has
potential to interest the private sector in participating in rehabilitation, and (4)vvheth8r the area
contains sites or parts of sites suitable for limited recreational open space, conservation areas, or
parks; and
VVHEREAS, pursuant to Florida Statute 376.80(l)/c(1) of the Florida Bn]vxlOe|Us
Redevelopment Act, the City shall notify the Florida DepaFtment of Environmental Protection and the
Miami -Dade Department of Regulatory and Economic Resources for amendments to the existing City
Designated Brownfield Area; and
WHEREAS, the City Commission has determined that the Proper -ties have met the criteria tn
Uedesignated as Brownfield sites;
NOW, THEREFORE, BE|TRESOLVED BYTHECOMMISSION [}FTHE CITY [)FK1K\k4|'
FLORIDA:
Section 1. The recitals and findings contained inthe Preamble tothis Resolution are adopted
byreference and incorporated osfully set forth inthis Section.
Section 2. The City Commission designates the Properties as Brownfield sites within the City,
for the purpose of environmental rehabilitation and pursuant to Florida Statutes Section 37078' et.
seq.
FKeNumbcr74-00566
Section3. In accordance with the Brownfields Redevelopment Act, Section 376.80(l), Florida
Statutes, for Brownfield program administration processes, the City Manager is directed to notify the
Florida Department ofEnvironmental Protection and the Miami -Dade Department ofRegulatory and
Economic Resources of the designation of the Properties as Brownfield sites, and to undertake any
other necessary related pronedurea, notioes, and requirements for said designation.
Section 4. The map of designated Brownfield sites and areas shall be updated to include the
Properties.
Section 5. Simultaneous to the designation, the City will continue [enn8diaMon of City parks
affected by contamination, enter into a Brownfields Site Rehabilitation Agreement for each park, and
apply for Voluntary Cleanup Tax Credits upon obtaining a Site Rehabilitation Completion Order,
Section6. This Resolution shall become effective immediately upon its adoption and signature
ofthe Mayoc�1)
APPFOVED AS TO FORM AND CORRECTNESS:
CITY ATTORNEY [-1\\\\\��
``_
Footnotes:
{1) |fthe Mayor does not sign this Resolution, itshall become effective 8tthe end Often /1O\
calendar days from the date it was passed and adopted. If the Mayor vetoes this Resolution, it
City Qf1flami
CITY OF ML4K8|. FLORIDA
INTER -OFFICE &qEK8(]RANDUK0
TO: Daniel J,Alfonso
City Manager
FROM: Mark SpanicUi.P.E,lDireoto/
Capital Improvements and
Transportation Program
DATE: June 13.2O14 FILE:
SUBJECT: Findings toDesignate Select City of
Miami Parks esBrownfield Sites
REFERENCES:
ENCLOSURES: Property Locations
This memorandum respectfully requests your approval and adoption of the below described findings to
authorize designating six (6) City parks that are located outside of the City of Miami existing Brownfield
Area, eaBrownfield Sites, The City has conducted environmental status evaluations at 112 parks located
within our jurisdiction due to contamination discovery at Blanche Park while implementing soil testing
within a 1'mi|e radius of the former City Incinerator #2 that operated in Coconut Grove located at38O0
Thomas Ave, which iscurrently the Grove Fire Rescue Training Center. During the environmental status
evaluation via visual park inapectionn, historical aerial photognephs, and viewing archived City files;
several locations were suspected offormer landfill operations prior to conversion into parka.
Following the initial environmental status evaluation, the soil was tested at each of the parks of concern
which resulted in confirmation of eight (8) City parks containing a combination of solid waste debris and
heavy metals at levels that exceed the Miami -Dade Cleanup Target Levels for the Residential Threshold
(residential threshold for parks iadue hn chi|dren'u potential exposure tothe aoi|). Per the requirements of
Florida Administrative Code (F.A.C.) 62-780, the City is required to remedy environmental hazards on any
property that itowns. The location and name of the parks tested with confirmation of solid waste debris
and heavy metals contamination are as follows;
Outside ofthe existing City ofMiami Designated Brownfield Area
3045Shippin Ave (Blanche Park)
27S5SVV37~Avenue (Douglas Park)
34OOGrand Avenue (Billy Rolle Park)
334QPan American Drive (Site ofFuture Regatta Park)
4355SVV42ndAvenue (&4errioChristmas Park)
Within the existinq Citv of Miami Designated Brownfield Area
1901 NW 241�'Avenue (Curtis Park)
301 Biscayne Boulevard (8oyfrontPark)
FINDINGS
As of the date of this memo, Blanche Park is currently under remediation, Merrie Christmas Park is in the
pre-remediation phase, and the remaining are either undergoing or concluding a thorough environmental
assessment bytesting ofthe soil and groundwater. The City ofMiami intends horemediahaeach park
with confirmed environmental contamination per requirements listed within F.A.C. 62-780. Each park
remediated will be restored to its original form, and will remain as a park upon completion of the work.
Brownfields are typically associated with property that has a combination of environmental issues and
Date:
redevelopment potential, Although there will benoredevelopment component inthese instances, the
City intends to; I.) Designate each of the six (6) parks affected and not Currently in the City Designated
Brownfield Area, as e Brownfield She; 2j Enter into a Brownfield Site Rehabilitation Agreement with the
Miami -Dade, Department of Environmental Resources Management(OERM) for all eight (0) parks and; 3j
Upon successful remediation, apply for Voluntary Cleanup Tax Credits for the purpose of sale or transfer
ofthe credit eoallowed per Florida Statute 22O.1645,
The City ofMiami currently owns each City park. Dating back toaaearly oothe 1030's. residual
incinerator ash was deposited on parcels of land throughout Dade County, some of which were converted
into City parks. The City ofMiami owned the parcels of land in which the eight(8) City parka are located
at the time of this practice, This auUvdv predated today'a environmental 1avvn. however currently Florida
Statute 376.80 imposes strict liability on any owner ofo contaminated site. According to Florida Statute
376,82� any person who has not caused or contributed to the contamination of a Brownfield Site On Or
after July 1. 1997. is eligible to participate in the bmwnfie|d program established in so, 376.77'376.85.
The contarnination discovered at each park was deposited prior to 1997, therefore the City would be
eligible to claim Voluntary Cleanup Tax Credits on each pmperty, given that they are designated
Brownfield Sites, and that each has undergone remsdiaUnnfollowing the guidelines in F,A,C. 82-780.
Upon successful remediadon, and issuance of She Rehabilitation Completion Order from the Florida
Depar-tment of Environmental Protection (FDEP), a maximum of$5OO.00O can be claimed on each
property; and the credits may be sold or transferred in units of not less than 25% of the remaining credit.
Unused credits may becarried forward for uptofive (5)tax years,
The City has determined that designation of these properties as Brownfield Sites coupled with the
cleanup would be of future benefit for the purpose of recouping a portion of the overall costs that will be
expended to investigate and mmediate these siteo, which will total several millions of dollars,
Your signature below will indicate your concurrence with the above recommendation and acceptance of
these findings osyour own justification for designating these six (8) perk Properties as Brownfield Sites
for the purpose of the sale or transfer of future Voluntary Cleanup Tax Credits that will be applied for and
issued for each property individ),aUy,
Approved
Daniel J. AKo
City Manager
Cc: Alice a���E..Deputy City Manager/Chief mInfrastructure
Victoria Mendez, City Attorney
m"m snanimi, p.s, oiemo,. oavxa| Improvements and Transportation pmo,am
Stanley Mmey.Director, parkvsnu ncoraunn Department
E
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BLANCHE PARK
Property Highlighted in Red: 3045 Shipping Avenue (Blanche Park); Folio: 01-4121-019-0030
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DOUGLAS PARK
Property Highlighted in Red: 2795 SW 37 Avenue (Douglas Park); Folio: 01-4116-000-0220
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BILLY ROLLE PARK
Property Highlighted in Red: 3400 Grand Avenue (Billy Rolle Park); Folio: 01-4121-007-4620
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FUTURE REGATTA PARK
Property Highlighted in Red: 3349 Pan American Drive (Future Regatta Park) Folio: 01-4122-002-0010
MERRIE CHRISTMAS PARK
Property Highlighted in Red: 4355 SW 42 Avenue (Morrie Christmas Park) Folio: 01-4129-000-0150
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Property Highlighted in Red: 140-142 SW 11 Street (Southside Park); Folio: 01-0208-050-1010