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HomeMy WebLinkAboutCC 1976-09-09 Discussion ItemTRAFFIC IMPACT STUDY • Pair Isle • Coconut Grove _ • — TRAFFIC IMPACT STUDY Prepared For FAIR ISLE RESIDENTIAL DEVELOPMENT COCONUT DROVE MIAMI, FLORIDA CABOT, CABOT and FORBES LAND TRUST and HOSPITAL MORTGAGE GROUP BY Wilbur Smith and Associates Miami, Florida April, 1976 04 4 Itigesp 0.01.046106/644 s N� April 16, 1976 Mr. John Lowell, Jr. Cabot, Cabot and Forbes Land Trust and Hospital Mortgage Group Al Fair Isle Coconut Grove, Florida 33133 Dear Mr. Lowell t tin filritiOtiVIE Sit Bars 1111114614 We are pleased to present this report, "Traffic Impact Study, Fair Isle Residential Development" in response to your recent letter of request. The report addresses traffic generation, based upon type of resident, and patterns of occupancy reflecting the South Florida life style. The site traffic is estimated to add a total of 2200 daily vehicle trips to this highway system upon completion of the devel- opment if convenience shopping facilities can be provided on -site in accordance with R-5 zoning. Should the character of resident, and the zoning, shift to where no convenience shopping was available on -site, and the res- idents were engaged in work requiring scheduled presence such as 0:00 A.M. to 5:00 P.M., the impact of traffic would be much more severe. Both occupancy patterns and auto usage patterns, would be sufficiently different that the external traffic could be increased to approximately 4300 daily vehicle trips. Several modest improvements are suggested to improve safety, including a relocated and improved bus stop. These are detailed in the report. Should there be any questions, please feel free to call on us. Respectfully submitted, WILBUR SMITH AND ASSOCIATES Joseph F. Rice. P.E. Associate -in -Charge Registered Professional Engineer Florida No. 19175 644140CE. ON • Analga • $O$TOM • 41R114/04 CO4NMEIA.:C • QA44418 • #AL4i0MU GN. VA • SONO ONO • NOWTON • 0410KV44.0 tOAl0061 • L L4 MOMS 4IE411OURNE • MUAM1 • NEW MAWEM - NEW VOW •.1414ADW44lA - AICMMOMO • UN #AAMClIOO.131MGAPO • TOI10NTO • WA$N1MGT0N.00 • W$P s Y MOWN TABLE OF CC)NTTN'S CHAT?TETt TITLE PAW Letter of Transmittal ii 1r Table of Contents i 1 Existing Conditions 1 Location 1 Capacity 1 Condition 1 ,l 2 Traffic Characteristics 6• 3 Analysis and Conclusions 10 Growth 13 Mass Transit 13 Fair Isle Bus 13 waterborne 13 A Bicycle �� 13 Conclusion 14 0. laTraffic Generation 14 Occupancy 14 Trip Rate 14 internal -External 14 Hourly Distribution 14 Capacity of Bayshore Drive 15 Comparative estimates 16 Impact 16 i Chapter 1 EXISTING CONDITIONS Location - The Fair tale development is a proposed $00 unit luxury condominium located on an island off the coast of the mai-n- land in upper Coconut Grove. A bridge including a security check point is already in place. Fair isle Street connects the bridge to Bayshore Drive, a thirty foot wide street connecting the divided roadway of Dinner Key with the four lane section east of Halissee Street. This area is shown on Figure 1. Capacity - The section of Bayshore Drive extending for several hundred feet each side of the signalized intersection at 17th Avenue operates above capacity during weekday peak hours. This period usually begins just before 7:30 A.M. and extends to almost 9:00. The afternoon peak hour begins about 4:00 P.M. and extends to 6:00 P.M. This situation is typical of arterial streets in urban areas for short periods of time during rush hours. It is shown in graphical form on Figures 2 and 3. Fair isle traffic is shown, superimposed. at both R-S and R-3. Condition - Fair Isle Street is a typical 22 foot wide residential street with curb and gutter. Its surface condition is considered fair although wavy. City records show 50 feet of Right -of -Way. Bayshore Drive is a combination concrete and asphalt surface totaling 30 feet of driving width. It is bordered on the southside by a paved bicycle lane. City records show 60 feet of Right -of -Way. Bus stop benches, and bus stops are located in a position where they affect traffic flow. The conditions are illustrated by the photographs in Figure 4. rtorbkr. •c*ovt 7t**111t : IN 43 OP 0 4 Figure 1. - 2 = MOW Of flit *a lior is 43 4 11111,1111111111111111 _ WIRT UM 1 1200 1000 800 r. 600 400 200 Mid Night 17 ■r Volume - Capacity Cotnparisan Eastbound Approach of Hayshore Drive at 17th Avenue CAPACITY (1) 960 VPH (1) Estimated level of service 1 2 3 4 S 6 7 8 9 10 11 12 1 2 3 4 5 6 7 0 9 10 11 12 ?air Isle l!-2 i ••� M• OV THE DAY 18114c"1 11 11 11 1t 1200 1000 800 w C c 600 400 200 Mid Night 11 Mt 800 VP 2 34 $ 6 7 8 9 10 11 12 1 2 A.M. HOUR 0P THE. DAY Volume - Capacity Cempaafisan Westbound Approach of Baysbore Drive at 17th Avenue 6 7 P. (1) Estimated level of service 'PCB. 9 10 11 12. Fair isle 11-3i"` Fair Isle 1l-5•.• �• �- •• 1t • 62. w 615' 62.5. tQ � �' �. 6 et R 41. cline 62.5 2p Chapter 2 cRARACTR i8Tic8 Traffic Generation Pair isle is proposed to be a luxury apartment/condominium development of not over 600 Dwelling Units (MU) under zoning of R•9, This Boning permits construction of the DU's in such a way as to preserve the maximum amount of usable ground for recreation, such as tennis, handball, club facilities, Ate. further, it permits the inclusion of such shopping facilities as may preclude going off -island for many routine items such as groceries, sundries, news, drugstore items, barber/beauty shop, and similar "necessities". • The sense of security and peace of mind that accompanies a development of this type, especially on an island with a guarded w bridge approach, brings with it a tendency to remain on -island as much as is conveniently practicable. Based upon other island N locations and upon developments having similar mixes of occupants, approximately half the person trips generated daily would never leave the island. i Figure 5 represents the internal -external trips by broad functional category. Studies published by the Florida Department of TransportationLi on traffic generation, indicate an A.M. peak hour of 9-10 percent beginning as late as 11:00 A.M. for condominimums (with shopping facilities) with residents in the high income brackets, and a P.M. peak hour of 8-9 percent beginning as early as 3:30 P.M. The per- centage of traffic outbound in the A.M. highway peak hour (8:00 A.M.- 9:00 A.M.) is approximately six (6) percent. During the P.M. peak hour between 4:00-5:00 P.M., approximately nine (9.4) percent of daily travel occurs with almost two-thirds being inbound toward the development. Vehicle occupancy also varies considerably, ranging I/ Published by Florida DOT / Trip -in Generation Research Studies 822 thru 826 / Division of Planning and Programming January 1975. IOW 6 ODOM 11! U1 -U1 111 •111 U Business/Work Shopping Social/Recreation Other $o 1117 —or —11114 Figure 5 Person Trip AllocatiOn Internal External otaJ Trips Trips Vehicles Trips Trips Vehicles Trips Trips V eki DU DU DU 1.1 880 733 1.1 880 1.6 1280 1066 1.0 800 667 2.6 2080 1.3 1040 867 1.0 800 667 2.3 1840 0.3 240 200 0.2 160 133 (0.5) 400 733 1733 1534 333 3.2 2560 2133 3.3 2640 2200 6.5 5200 4333 Trips - is the number of individual, one-way person trips per day per occupied dwelling unit. The overage vehicle occupancy rate is 1.2 persons per car. x DU = Trips DU Person Trips Average persons per vehicle (1.2) = Vehicles External Trips per DU (3.3) Total Trips per DU (6.5) Shopping 800 x 1.2 .6 = 0.51 = 1066 vehicles from 1. i to Over i. d, A rate of 1.4 psnans per vehicle has been verified following local Checks, but the More ouim on L.2 rate was used in predicting traffic generation. This information has been verified by other studies including independent chocks of Arlon House and Arlen House Hest, certain Hollywood residential developments, Hey Biscayne developments of similar character, and by a series of interviews with Collier County luxury development managers. OCcuoancv The traffic impact will be a function of the number of occupied dwelling units at any particular time. The established pattern for luxury condominiums in South Florida shows a significant degree of absentee ownership, with many part time residents living in this area only at some period during "the season" (approximately Thanksgiving thru Easter). Surveys conducted in a similar west coast area, showed their peak period is between December and March and, during that period, the occupancy rate ranges from 77 to 95%. While this is not considered conclusive, it did represent 22 establish- ments, the five largest (each with 90% or less peak occupancy) of which contained 607 DU. It is therefore considered appropriate to continue to use the 90% occupancy factor assumed by the Dade County DOTT in their 1970 correspondence with the City Planner. The data referred to above also showed that during the summer months occupancy for the same five establishments varies from 40 to 47%. In view of this, a conservative estimate of 50% of the DU's being occupied on a year round basis appears warranted. Based upon the above, and similar studies as reflected in the Florida DOT Trip Generation report as well as reports on communities in Hollywood, a winter season occupancy rate of 90% and a summer season rate of Sot is considered realistic for Fair isle. However, for the purpose of this impact analysis the 90%, or most severe, rate is assumed for year round. Y Chatter 3 IS AND COINCLUStOSA ffic rend Ana1vs1a The analysis of various traffic counts on South Bayshore Drive (Table 6 ) shows that during the thirteen year period 1964;4976 traffic growth east of 17th Avenue has averaged 5.8S percent per year, increasing from 10,669 to 17,488 for a 24 hour period. TABLE 6 TRAFFIC COUNTS South Bayshore Drive at S.W. 17th Avenue Year East sound West Bound Total 1975 8,127 **9,361 17,488 1974 7,849 9,215 17,064 1973 7,593 8,591 16,184 1969 6,164 6,894 13,058 1964 5,356 5,217 10,669 The detailed analysis also shows that a directional in - balance of approximately 46 percent east and 54 percent west bound exists due to traffic entering and leaving via 17th Avenue. The westbound flow, corresponding to the direction of peak hour traffic during afternoon hours, has an average right turn at 17th of over 15 percent. The 1975 count on Sayshore near Fair Isle, as well as in the turning movement counts taken during peak hours at 17th Avenue and at Fair Isle shows a significant reduction of traffic west of 17th Avenue. This is pictured on the flow diagrams shown in Figure 7. The analysis of the 24 hour counts, and the percentage of hourly variation support the designation of 7-8:00 A.M. as the morning peak hour, and 4-5:00 P.M. as the afternoon peak, 5 to 6 P.M. as the west bound peak. The "peaking" characteristics are quite pronounced as is shown in Figure 8. ** Analysis of turning movement counts confirms that there are now an average of 1200 cars a day more east of 17th than west of 17th. - 10 - 0 A.:i. Peak Hour Flow P.M. Peak Hour Flow Daysliore Drive at S.M. 17th Avenue Figure 7 02.5 00.-7 11.5 04.0 9.8 4.2 6.9 3.2 01.4 01.3 00.6 00.5 00.5 00.4 pc, 8 6.0 3.7 5.8 4.6 0 > 6.1 6.1 F,1 7.2 5.7 7.2 7.6 6.0 8.3 5.5 11.3 3.9 11.8 4.7 7.3 3.6 4.4. 3.0 5.0 = 2.9 3.5 2.6 3.4 2.2 2.5 7 rr Paraant 0 Figura 8 0.0 0 f7 M. 0 rt 0 O. • a e A Growth - It is expected to require five years before the bui.ldout of Fair isle is complete. During this period improvements can be expected in the level of transportation service, especially the home - work . home trip, in the South Dixie Highway - South Bari shore Drive corridor. In addition, there are several alternatives to the present use of the automobile. Mass Transit Bus service is good between the Grove and downtown Miami, including service to Brickell Avenue. Improvements in schedules and equipment will make it even better in the future. It is a short walk from pair isle to the bus stop at gayshore. Ridership will become more attractive and is expected to accommodate 5% or more of the external trip demand in the future. Fair tale Bus - A co-op bus owned or leased by residents for external recreational and shopping trips may become popular. The Arlen House complex residents utilizes these buses effectively. Water Borne - The use of water taxies, water buses or tour boats for residential movement has been considered for Biscayne Bay for years. Further refinement of this mode can be expected during the next five (5) years. Demand Responsive - Taxies and limousines are now being used to provide on -call service. In addition, vans and small shuttle buses, radio equipped, can provide similar group service. Bicycle - The use of bicycles for serious transportation has lony been practiced and accepted in Europe. The system of Bike Paths and Trails that are emerging in Coconut Grove will encourage further utilization of this mode in the future. • l3 • t M 0 • CCNCt1U6 ZON This report has addressed the following key subjects relating to traffic and traffic service for the Fair isle Development of goo Dwelling Units on R-5 zoning. Traffic Generatiah Occupancy - Developments in this price range can be expected to have an average occupancy► of 90 percent during the winter season and 70 percent during other periods. Trip Rate - The trip rate for residents of Fair isle is pro- jected at 6.5 trips per DU. Internal - External Traffic - The percent division of trips between internal and external origins and destinations is projected to be 49 - 51. Thus, approximately half the person trips normally generated would never leave the island. This is based on R-S zoning. Hourly Distribution - The morning peak hour for residents of Pair Isle is expected to occur after 9:00 A.M. and to be approximately 187 cars. This is consistent with other similar developments in the vicinity and is projected for the time period 9-10 A.M. The normal P.M. peak at 5-6 P.M. is projected at eight (8) percent or 176 cars. • Directional Split - Coconut Grove with all its attractions, its theatres, shopping, bicycle paths and cultural activities, all available by a long walk, a short bicycle ride or by bus, is close enough to attract fifty percent of the trips leaving the island. During the regular week three cars turn to and come from the Grove for every two cars turning toward Miami. The division of traffic is projected as half toward the Grove and half toward the City throughout the day. Local projections are that during the A.M. peak hour, 70% of the traffic from Fair Isle will go toward Miami. The 70-30 peak hour trip distribution has been used in those calculations. 14 - r e • r 1 • • CenacLty al Jlawshore D ` ve • The capacity of amphora Drive can be improved in part by better definatian of the lanes between Pair tale and 17th Avenue. Repainting to designate three, 10 foot lanes is recommended. Concurrently, the shift of the bus atop to the east of the big tree will remove a recurring capacity restraint from the travelled way. The time, direction, volume and amount of traffic to be generated will not require exceeding the capacity of gayshore for extended periods during off peak hours. Comparative Estimates - 800 Units at R-S vs. 800 Units at R-3. The more conservative prices of housing normally identified with R•3 zoning, and the lack of shopping and recreational facilities that could be provided on the island would affect the traffic generation and impact. Numbers used are for maximum occupancy. DU Occupancy Trip rate Car occupancy Internal trips External trips Total R-5 90% - 720 DU 6.5 per Dwelling Unit 1.4 persons / car 2560 trips - 2133 vehicles 2640 trips, - 2200 vehicles Peak hours - External 8-9 A.M. 9-10 A.M. 3-4 P.M. 4-5 P.M. 5-6 P.M. Capacity impact A.M. Off Peak P.M. traffic 5.9% - 130 8.5% - 187 8.8% - 194 9.4% - 207 8.0% - 176 Marginal Minor Minor R-3 95% - 760 DU 8.0 per Dwelling Unit 1.2 persona / car 1290 trips - 1066 vehicles 5120 trips - 4267 vehicles 6400 S333 11% - 469 7% - 299 8.3% - 354 11% - 469 11% - 469 Heavy Minor Major During the P.M. peak hour, two-thirds of the development traffic on Fair Isle Street will be toward and one-third away from the area. During the A.M. peak hour the historic travel indicates approximately 70% of the traffic traditionally turns toward Miami. MASI• This study has shown that the impact et 000 R-S luxury units exerts both fever ears at regular highway peak hours and fever overall off-ialand trips than an equivalent number of units at R-3 zoning% APPENDIX A-1 Capacity Analysis A-2 Bayshore Drive and Fair Isle Street Peak Hour Count A-3 Bayshore Drive at Pair isle Street 24 Hour Count r A-4 Bayshore Drive at S.W. 17th Avenue r Peak Hour A-S Bayshore Drive at S.W. 17th Avenue • 24 Hour Count A-7 Traffic Planning Criteria 0 A-8 Trip Ends Generation Research - Florida DOT Study 22-26 A-9 National Association of County Engineers Travel Generation al Caateity Ana►ss A capacity analysis was made on the approaches to the inter. section of Sayshore Drive and l7th Avenue. The procedures used for calculating the capacities was based on.the method outlined in the tiahwav Capacity Manual" Several basic assumptions were used as calculations. Those assumptions were as follows i Level of Service Peak Hour Factor 0.85 Cycle Length 60 seconds Green Time (Sayshore) 37 seconds Green Time (17th Avenue) 17 seconds Approach widths Eastbound (Sayshore) 11' (thru) & 9' (Lt.) Westbound (Heysham) 10' Southbound (17th Avenue) 10' CAPACITIES (Vehicles Per Hour) APPROACH A.M. PEAK P.M. PEAR ES thru 960 960 Lt. 475 120 W8 690 705 sit 385 335 (1) Highway Capacity Manual, Highway Research Board, Special Report 87, 1963. 1 s Ottl O•^ ,7J ) 4 imma 1Y1o111t e'1Ratt1! $ taiN ue&11uN Mt?ROPOIDA?MI S*/4 tS.,l t, P40404 MINI 00V01104T WNW rd l alga 3 OivTt L•S"..'JP !dig atl l 41 rgn Fl YTAt 11111111161.1111111MIMMUM zts 5 r ev TOTAL r ITA1. II II TOTAL 2. 7 110140 r r 1 or Waft i Olnib 10110 I►i a � �or � ONO ear, 'ILI WIITIMNIND 7ttt 1177 411 tS 34 3,' .111MH, 14 14 l idc,1 11P7,I 11ili►: r417,1 ". 3 144' VIQIIUJ COY I? It! ORD POP AUTOMATIC INNIM •- -- y 1 alii 1 siptii ampammurnirrall 111111114,1711 Y . I nib, Ott WM 0 Oft COUNT TAK[N /irI 1. Somoos1tion of Heads of Households: Retired Smp loy►ed Unemployed -Student TOTAL 3. Average Length of Trio 3. One-way Person Trips per jiovtehold per Day �4. Time of Travel: PER CENT OP DAILY TRAVEL Purpose of Travel: PER CENT Shopping �:.9 Business - Work �ql` Social - Recreational Other, x 18 RESULTANT TRAFFIC PLANNING CRITERIA Source .441.440.1464 TRAFFIC IMPACT STUDY Proposed Hollywood Residential Development Hollywood, Florida TRIP GEIZRFION STU�Y JMMARV 0 Nem. e< itvilp Site ftliaanAgne Waft Ni. E pe, Tier a►t Development Lauderdale Condoenini rsu Auau ZD_ 10/1 BACKGROUND DATA ttendend Land NN Cede High rise condominium with showsiti factitttes Isla de/glint unite: SO% oetunauev Emend an IN. 15saeh TRAFFIC DATA A.M. PEAK HOUR PM, PEAK HOUR 24 dour Total Inbound \outbound total 8oc i6 snbound i outbound Total Begins Workday . 106? / 11100 . _ 1385 3130 ,� 16,252 y Saturday . r y ... . , Sunday r _ Source : Trip Ends Generation Research State of Florida Department of Transportation Division of Planning 6 Programming TRH GENERATION STUDY SUMMARY flame 0t $My Sits ° .°Ave Olt S.C. Ft, .avderdate Type of Development De August 2. 1972 Ceedetet..tw■ • BACKGROUND DATA itan+d"d Lel We Cads Jam...:.. AoxielantiaL hialrite tondnrnTtura aiitheut totianai nr alkanaltia to vies. high Income: located on beach Total !lw�f3lw that* f (SA. Rflg1,nwwi.ral.wir TRAFFIC DATA A.M. PEAK HOUR PM. PEAK HOUR ; 24 Hour inbound {outbound Total AM Inbound outbound Total arts Total Weekday ` 148 , , 11100 490 1•30, y �, i razz Saturday . Sunday Source s Trip Sad. Gsnaration Reasarah State of florid* Dapsrtaint of Transportation Division of Planning a Programing 411, .r 1RP GENERATION STUDY =VARY Nome of stgdi sito Skim Air. Legation Pomona Beat h Type et Development Condom urn Data Oettointibor. 107/ BACKGROUND DATA Standard Land the Cede --112.,;—, A hish Inca catenary eariderninturn cernalese having: 2.006 flwo unite 104 of tho thvollinaiiiIt wor• neeuptad at tho *irnaifOw gaudy. the remainder being owned by winter residents TRAFFIC DATA A.M. PEAK HOUR P.M. PEAK HOUR 24 Maur Total inbound outbound Total , atits inbound outbound Total ago Weekday Saturday. Sunday Source • Trip Dads Gesteratiee Soaeaseh State of Florida Department of trampeirtattea Divieles of Plaaatag & Proprawatag r TRP GENEMflON STLmY SUMMARV Nome of !ham Site Imporlw sr� Lamm Nemweed Tripe of Development ._ �.... ltinderd Lam! Use Cede Date Asir. 1422 BACKGROUND DATA Me+dit an-aiaed_eendomit,imal Itta% tftuana. tty. A* day, `- future **anion planned Na terPsttienai ciw3 ! 4 */e. 662 total dwollifla ph luuV TRAFFIC DATA A.M. PEAK HOUR PVI. PEAK HOUR 24 }tut 1 Inbound outbound + Total Zs ... Inbound ' .r outbound Total n#Tatal Weekday + LS2 ' 11100 ... 176 ., 5:00 19a5 Saturday ,Sunday smarm s Trip Bata Generation $sasar* State of florid* DepartmDivisionf naming Progressing nRP GEtZRAflON STUDY SUPNARV liein� oR Study Situ Mtllsmst Leo" Maayweed, Platt& Typoof DinvoniM Conetominitra BACKGROUND DATA. litandard Lend Un Cede .. i .:. - - _ - Jr-7u = , It country club, golf course Located in south central Hollywood 1100 toted dwelling units) 33% occupied toff seasoni TRAFFIC DATA A.M. PEAK HOUR PM. PEAK HOUR 24 NW Total inbound outbound Total ale°a ns , inbound i outbound Total Zits Weekd0y 0 176 176 11100 206 . 100 )06 , 1*Q��- .r 3262 Saturday Sunday _ _ Some ?sip side Vitals lereu* State, of p3dtttl Depairement of frowpoortstios Divides of sib # Ihrogroidas too* 11E!'E1!• 11 ' mot # dE1iCCMUEM f tt1P 'OE1eNAf10N We Nair iT! '$IT6 , t ff* WI 4 oa r i ' 11t11Ert 4XIt �tfitill< PISI lTilIMT 1 m out ; IMIA., A * t0'f lint UM 1 0 .' 1109iem01 meow, 1000 (1) i.#.#. • 0.16 0.91i 1,05 1.5 , 1.7 4 3.2 2.7 149 90) f 'b,4 ; 43 1. t31), ill) $119hbbM064f She in 1000 (i) 6.7.2. • ` O. 0.29 1.015 4.0 11,1 6,1 S,6 3.b (30)1 9.4 60 '° 2.$ 4.1 1 6(36) . ' LSD ree Staretng 0isbrnnt tun 1000 (1) C.P.A. • .; 0490, 0.20 0.00_ 2.9 1.) ; r 6.2 4.4 3.4 {30) 7.0 i0 , 1.2 3.9 ' (31), 3.1 Subdivision Dwelling Unit . • 0.2$ 0.50 0,01 0.60 0.40 1,00; 0.3 • • NI V AbetmentWilt Mille, • 0.10 0.5S, o.65 0.53, 0.20 O. Lb • 1Mlu$triel perk 1000 (1 C.P.A. • 1.4 0.2 1.6 0.2 1.4 1.6 Larne s peas 10.0 . r Office 1000 (1) O.f.A. , • 1.62' 0.10� 1.60 OM2.35 2.62 r Less s beaks 11.1 , Hospital led 0.42 0.04'i 0.46 0.14- 0.45.4 0.36 $ • • , 1 Library 1000 (1) 4.f.A. • 3 . 3.96 5.96 11.92 119 „ • • 1 i 41 Drivt•in . Theatre parking ; Spats ,I2�D , Drive•10 Q + Restaurant 1000 (1) C.f.A. S) ► ' 1 97 13i 4 166 310 - . ! - - - (1) 1000 sobers foot 'rots floor arse (10) 0119hatt srriwrl tour (3i) Mi9hest laylu9 Moor Source t Volume XV Travel Generation National Association of County Engineers Action Guide Series Miami City C* titiaoion 1500 Pan American Drive Miami, Plori is 33113 AT, FAIR VILE Dear The City Commission will consider a recommendation from the Planning Advisory Board fora change in zoning for Pair Isle at 3t30 PM, Thursday, April 22nd, 1976. Its preparation for that background information. necessity of presenting the nearing. Enclosed I. .I. hearing, we are enclosing herewith some This is being done to eliminate the these materials verbally at the time of you will.finde Basic data on the revised development for Pair Isle. A summary of the litigation concerning Fair Isle, in- cluding the suits with respect to the building permits and the zoning. Data on the various schools which would serve the Fair Isle Development. V. A letter from the City of Miami concerning the sewer • capacity in the area serving 7air Isle. V. Comments of the Members of t1 a:ir ing Advisory Board from the meeting of ..arch 1Cth, 1976. VI. A copy of the Restrictive Covenants which the owners of Pair Isle propose to offer to the City at the Commission Meeting on April 22nd. Thank you for your attention to this. Sincerely, Fair Isle Project - A Joint Venture of Cabot Cabot and Forbes Land Trust and Hospital Mortgage Group by Jack Lowell, General Manager cc: Bob Traurig, enberq Trauriq John Loyd, Ci. of Miami Attorney eorge Rr*girt, P i r netor Pp." ", r0 p, r n n i:fig T11+n n r 1 .•� so-.. FAIR ISLE BUYER. PROF: LE : FORMAT:OM Prolact siset 770 units. 50 hotel rooms 177 one bedroom apartments 378 two bedroom apartments 165 throe bedroom apartments The prices will range from a minimum of $67,000 for the smallest one bedroom, to a price of $200,000 for the largest three bedroom apartment. II. The median income of the buyers is anticipated to be excess of $25,000 to $30,000. We estimate that approximately 30% of the buyers will not use the condominium as their primary residence. It is estimated that another 20% of the owners will be retired, semi -retired, or have indepen- dent means so they will not commute to a regular job. Another 50% of the population- is expected to use the island as their primary residence and to have a professional or executive job in the Miami area to which they will commute on a regular basis. Population projections: Comparable projects: A. Yacht Harbour: 142 units, 20 vacant. 20 children attending school between the ages of one and eighteen. B. Arlen House East: 600 units. Twenty -twenty-five children attending(20..25) schools. C. Arlen House; 255 units. Primarily retired cliental. Two children residing in this project.. Aceordingto two marketing experts, who .shall be unnamed at this time: A. The number of children Pair Isle would generate "you could fit into a thimble". P. The number of children Fair Isle would generate would be "miniscule". C. By our calculations, the maximum number of children Fair Isle would generate is 130. D CA ♦ * Thla lawsuit (a mortgage foreclosure) was brought by the Tenders oreight million dollars ($►9,0n0,000.00) for the construction financing at a project on Pair tole now known as Sailboat Key, end holders of a mortgage and note Securing that mortgage in the same amount. The lenders brought suit to foreclose upon the aforementioned mortgage and note upon default of the mortgagors, Sailboat Key, inc., and the guarantors, Burton Goldberg and American Advisory Corp. The Circuit Court of Dade County, the Honorable Milton A. rriedman presiding, rendered Judgment on the foreclosure in the amount of $10,457,483.44, an amount equal to the principal owed, interest owed to the date of the Judgment, attorneysfees and costs. A public sale was ordered on July 18, 1975, and the Plaintiff, Cabot, Cabot & rorbes Land Trust, bid the property in at the sale for eight million dollars ($8,000,000.00). The bid was duly assigned to Southeast First National Bank as Trustee, who now holds the land in Trust for the beneficial owners Cabot, Cabot & Forbes Land Trust and Hospital Mortgage Group. The mortgagor and guarantors have prosecuted an appeal, which is presently pending, to the Third District Court of Appeals, seeking to reverse the foreclosure proceedings, and other findings of the trial court. Also pending on appeal is a judgment denying mortgagees a deficiency judgment. *John C. Spencer, et. al v. City National Bank of Miami, et. al Case No. 74-25348 RELEVANT PLEADINGS ATTACHED H1 'MN e1 taut' MU! r 1 vim et ;whyri; r SAL CIRCUIT Off' rtouzDA IN AND tin DMaa aNt T fltst. Jt ISOZCT7ON !MINION sIntr,1 c. tilt/WIT, VINGTN1A Q. IISvErtt,Y wttitAA14 A, VAN Nor iev, ,1tt. , as Tru uses foz r' :1!ty InX 'It MORTOA M tNtti;TOv.S, ' a Ma4nsithusetts Trust, Cx►13OT, CAfOT & PORTLAND TRUST, a 1 asshusett:h t3tts!.Items Trust, Latin t : �S PI", AL MdttT n/ C1 � CROUP, a Ma saeAunett Business Trust, t Plaintiffs, VC. a • _. Ca ? £ 1 TIONAI. BM Or MIAMI, Truste,:. under Land 'Trust No. SAILSOe T t( , INC., a eorpt.,ratint MA TON GOtht3ERG; AMti?IC ,N 74WISC :Y/�COt'.P. ► a Corite, a :':. tiri � Rl iYb O!`N1D III Ett"' I t TIO�, INC.,- a corporation SAS�::! -EN4I1:<BEI:I'NG, INC., a cor. c.tica; HATCH.P., 7.L'Er:Gt,,?, GU;;":! :. ; s oCIA'Y'SS, a General Part.:trship; BLISS & N3'Yii2AY, INC, r corporation: CO? "1NE? TAB., H3,-rGt►Gr I?'rtrES?O1 S , 3 i Massarf.lw:e.tts Business Trust SA7* :T-t.T ICE? CONDOM 1 N7 u:: _ ASSCL.`h,::tCEN, INC., a corpora- tip ::^:. for profit; SAILBOAT_ KEY MA "V ,L,... r7IT, INC., a r.Crf oratiion S THE CI :1' ON SZ iWOP.T vry, INC.. t. a co?w..z,::: x t. can; i+;AtTP.ICE: FEhRE, as NAM: C' TEP CITY OP MI MI. FLC:s:I. 'i: AVAIO co STR:?C' ION, INC.. a corporation; A RECI N Cd Tian:TION CO., IPC., a corpora- tior_ .. Defenda:tts. presvntc:c3 CA SC NO. 74 -2S348 ZINF1L, . UJCMENT Or I'ORECLOS}7P.E This action was tried before the Court. On the evidence IT IS ADJUDGED D that: 1. That Defendant, nt, .Al' U OAT KEY, INC. and fURTON Ci.31 a:' : ' n exceptions to the Special Master's report bv, and the _• "14''' in hereby, avorru 1. g1 and 1h,,v is no finding of usury os anoint plaintiff (MAP) 1 t'laiI1tii`fa, 40101 C. • '' NC 24 v&acts Os Y ard.M2MAN A. VAN i0it'iWIC$, .4 .,. era ottufteea rot F'i1iIZ?4TT ' MOW= VUOVORB, n Mnasachunettn Dualntaa Trust, CABOT, COOT & PORBES LAND TRUST, AMassachusetts business 'Mat, and mamma MOirriAGt wow, n Massachusetts Rusinesu Trust, are duty Night Million Dollars ($0.GO0,000.00) to principal, Two Million Twenty -pour Thousand One Hundred Forty -Pour and 40/100 Do11ara 0$2,024,1.44.40) as interest to the trlatc of this Judgment, $ 3 50, 000. 40 for Piai? t. iffa' attorneys fees, with $. 4 4.04 MAi court coats now taxed. $, 15.1)O�Q.j?4 for Receiver's fee, $1.271.100, 00AFj for Special taster's tee. under the notes and mortgage sued an in this action. Making a total sum of $. 0,457,483.44 tMAF)_ 3. Tho Plaintiffs hold a lien for the total sum superior to all rights, claims, liens, interests, encumbrances, road and street easements, equities, or estates of the Defendants, CITY NATIONAL BANK OP MIAMI, Trustee under Land Trust No. 5042-9; SAILBOAT }MY, INC., a corporation; BURTON GOLDBERG; AME1 ICAN ADVISORY CORP., a corporation; RtAYMOND INTERNATIONAL, INC., a corporation; SASNETT ENGINEERING, INC., a corporation; HATCHER, ZIEGLER, GUNN AND ASSOCIATES, a General Partnership; BLISS & NYITRAY, INC., a corpora- tion: CONTINENTAL MORTGAGE INVESTORS, a Massachusetts Business Trust; SAILBOAT KEY CONDOZINIUv1 ASSOCIATION, INC., a corporation not.for profit; SAILBOAT REY MANAGEMENT, INC.: a corporation; THE CLUB ON SAILBOAT KEY, INC., a corporation; MAURICE FERRE, as MAYOR OF TEM CITY OF t'IIAMI, FLORIDA; AVALON CONSTRUCTION, INC.. a corporation; and ARKIN CONSTRUCTION CO., INC.. a corporation; and all persons, firms, or corporations claiming by, through or under the said Defendants, or any of them, on the following described property in Dade County, Florida: Parcel 1: Tract A, according to the Revised Plat of FAIR ISLE, according to the Plat thoroof recorded in Plat Book 34, at Page 70, of the Pub3ic Rccordu of Dade County. Florida, A f i • , Po-etel ii 5'amement etra+r thq B t1i tty 3:elt :equate frontinv ell/ •. biaeriyne fay, rit Lot i7, neck 3, Amendad plat et PMl mw m, accurdini to the plat thcroof reeordod le plat nor* 0, at Pogo 120, of the Public t meords et Dada • County, F9.ortda. Parcel 31 Lot G, Ult RIJOIMER DAYPRON S, SivrtuN 'aWO, according to the Plat thereof recycled in Plat Book 4, at page 190, Of the Public: Records of bade County, Florida, Less the Northwesterly 10 feet thereof. Parcel 4: 'A perpetual easement for right of way for bridge construe- t'ricsn purposes, in and to the following described land in Dade County, Plorida: Commencing at the Southeast corner of the NE 1/4 of tho SE 1/4 of Section 15, Township 54 South, Range 41 East, run North of 0° 00' 42" East a distance of 33.57 feat to a point of intersection with the city monument line of South nayshore Drive: thence run South 630 14" 16" west along said monument line a distance of 625.30 feet to a point of intersection with the city monument lino of Fair isle Street; thence run South 26° 41' 25" East along said monument line of Pair isle Street and its prolongation. a distance of 992.47 feet to the Westerly bulkhead line of Biscayne Say; thence run South G3° 18' 25" teat along said Westerly bulkhead line, a distance of 7.50 feet to the Point of Beginning of a 25 feet easement, the center line of which is described as follows: Prom said Paint of Beginning, run South 26° 41' 25" East a distance of 224.68 feet to a point of curve, said curve having a radius of 790.29 feet and a central angle of 31° 56' 35"; thence along said curve to the left for an arc distance of 440.59 feet to a point of tangency; thence run Southeasterly along the tangent to said curve. South 58° 38' East, a distance of 50.25 feet to a point of intersection with the westerly bulkhead line of Pair tale. said bulkhead line being the westerly line of Pair Isle, as shown on "Revised plat of Pair Isle" recorded in Plat Book 34, at Page 70, of the Public Records of Dade County. Florida; the above all situated and located in Biscayne Bay. Dade County, Florida, in Sections 15, 22 and 23, Township 54 South, Range 41 East. Parcel 5: A perpetual easement for right of way for bridge construc- tion purposes, in and to the following described land in Dade County, Florida: A parcel of sovereignty Land in Biscayne Say abutting Section 15, Township 54 South, Range 41 East, Dade County. Florida, being described as a parcel of land, 10 feet in width. lying within 5 feet each side of a line described as follows; Commence at the Southeast corner of the NE 1/4 of SE 114 of said Section 15; thence North O° 00' 42" East 33.57 feet; tl,encci South 63° 14' 16" West 625.30 feet; thence South 26° 41.' 25" Bast 992.47 feet; thence north 63° 18' 25" Bat 1.0 feet to the point of beginning; t%onco South 26° 41' 25" East 224.68 feet to the point of curvature of a curve concave Northeasterly having a radius of 772.79 fcnt; thence, Southeasterly 430.84 feet along the arc of said curve through a central angle of 31" 56' 35" to tho point of tangency; thence South 58" 30' 00" Cast 50.25 Coot to the Westerly lino of Lair tole, according to plat recorded 1.n Plat. t+uak 34, t'.'qc '10, of the Public Reeoxda of Dade County, trlorida. • ♦ • r • ,'elgr 01 Lot d, t;l ►ek 2, or /Wended Plat of PATUMAV s, occordLnq to the Plat theruef, recorded in PJ;at Bork 8, Pogo L2*, of thu Pmb1ic Records of tiado County, rluraid t. • Parcel 71 Lot 9, t33.ock 2, of Amended t'iata of PAttt#tAWt, accordL to the Plat thereof, recorded $ n Plat Bitnik fl, Page 120, Of the. Public Records of Dade County, Id orida. pa el 8e Lot 17, Block 3, of Amended Plat: of FAlttttAVCN, according to the Plat thereof, recorded in Plat Book 8, Pagv 120, of the Public Records of gads County, Florida. Together with all improvements, appurtenances, furniture, fixtures, machines. rents, profits and/or other personal property Located upon or attached to or made a part of any or all of the 8 parcels of real property described above; and together with any and all building permits, including, but not 3imited to, building permits, No. 72-13131, No. 73-2984. No. 73-2995, and No. 73-6132, for Tract A FAIR ISLE REVISED (34-70); and/or licenses to build or construct improvements upon the mortgaged premises issued by any municipal. state or federal governing or administrative authority, subject only to the final disposition of that certain appeal pending in the Third District Court of Appeal of Florida bearing Case No. 75-268, which is an appeal from a Final Order of Dismissal entered by the Circuit Court of Dade County, Florida, on December 9, 1974, Case No. 74-13977, wherein the City of Miami, Florida. a municipal corporation, is the Petitioner. and Burton Goldberg, et al., are Respondents. 4. If the total sum with interest at the rate prescribed by law and all costs of this action accruing subsequent to this Judgment are not paid within three days from this date, the Clerk of this Court shall sell the property at a public sale on 1975, between 11200 A.M. and 2:00 Q.M. to the highest bidder for cash, except as set forth hereinafter, at the south door of the Courthouse in Dade County, Florida, in accordance with Section 45.031., Florida Statutes. 5. Plaintiffs shall advance all subsequent costs of this action and shall be reimbursed for them by the Clerk if the Plaintiffs are not the purchaser of the property at this sale. If the Plaintiffs are the purchasers, the Clerk shall credit Plaintiffs' bid with the total sum with interest and costs accruing ssubst:quont to this Judgment or such part of i.4 as is necessary to pays the bid in Lull. 4. An Ming t:'u Certificate of Title, the Clod; shall • WA3tribute thg promet n of t ►a sale, t tares they. tre omEtictimito, by paying' first, all of the Plaintiffs' Coats; 0000nd, d muntaty stattits affixed to the Certificate; third, the ReYcoiver's tom; fourth, Special Macter'n tee; fifth, Plaintiffs' attorneys'fogs; sixth, the' total sum due Plaintiffs plus interest at they rato prescribed by law from thin date to the daft, of t:ho nale; and by retaining any amount remaining pending the further Order of this Court. 7. On filing the Certificate of Title, the Defendants and all persons claiming under or against them since the filing of the Notice of Lis Pendens are foreclosed of all estate or claim in the property and the purchaser at the sale shall be lot into possession of the property. rurther, the Declaration of Condominium filed by the CITY NATIONAL I3ANI{ OP MIAMI under Land Trust No. 5042--9 and the easements and leases granted therein be. and the same is hereby, declared null and void. 8. Jurisdiction of this action is retained to enter further Orders as are proper, including, without limitation, writs of assistance, deficiency judgments, judgments on guarantees, and Orders.relative to the distribution of any funds that may be created for the benefit of the junior lienors or any of the other parties to this cause. The Court further reserves jurisdiction to consider and rule upon the breach of contract asserted by the Defendant, ARKIN CONSTRUCTION CO., INC.. against the Plaintiffs/ however, the Court again notes specifically that the lien of the Plaintiffs is superior to that of the Defendant, ARKIN CONSTRUCTION CO., INC., and that the property will be sold free and clear of any claims of the Defendants. The Court further reserves jurisdiction to adjudicate the junior lienors' claims in accordance with their stipulation road into the record on tuna 3, 1975, which stipulation the Court has ratified. Don thin __Emb day of Juno, 3975, at Miami, yl.orida, by „,, M!!TU_,1„ fift Clltcuji' , i113‘11i ourseit hod (:CHias“1.. 6 • 4 • 6 IC I $ 6 n ' • Itt THE CMCVIT cam or lins n NWINT3 $71/0/CiAL CLUCUIT a?' PbOat0A IS AND FOR. DADS.COVMT $71iLtLiiDteTLOU DIVIJZON C. SPENCER, VIRGINLA Q. OVERLY and WILL/AM A. VAN voarrucK, Jft. • as Trustees fOr PIDELITY MORTCAGE . • INVESTORS, a Massachusatts Business Trust, CABOT, CASOT & roans LAND TRUST, a •Massa•thusatts Business Trust, and HOSPITAL MORTGAGE GROUP, a Massachusetts Business .Trust, CASU NO. 8 • • 7410*-26348 S4 • . • Plaintiffs, • • 4 • s 4 . • 4 • • . . 6., ' it • / • • . . * . ‘ 416 • * •• A : . a, 6 6 .440T Li NATIONAL BANK op MIA • * .. ; MI, ... t • ..,. . • "' • t... . Trustee under Land Trust • • • — : .' ... • • • •• •• 4.. • • t No. 5042-9;tVAILBOAT•IMY, INC., % • t ., • •. . • . - • • t 14 ' a corporation; c.EURTON GOLDBERG; :. .1 pliMERICAN ADvzson. con... a • t • NATIONAL, INC., a corporation; 6• • ' ',6 • . • • • corporation; %ARMOND INTER- t• .• • 4 . SASNETT ENGINEER/NO*17NC., a * -corporation;WOMUM, ZIEGLER, t OVNU AND ASSOCIATES, a General Partnership; BLISS & NYITRAY, t. . . • •• .• . . • .. INC., a corporation: $CONTINM-t•. • • ... • t • . . TAL MORTGAGE INVESiORS# a . : •.. • • .. Massachusetts Business Trust; s. •-•. _ , • . ii,8•AIL3OAT Mir CONDOMINIUM .•-• . : • •• •. . ; .., . •• ASSOCIATION.. nrc., a corpora- • . ..• •.• $ • : „*. • • to -• • ,• • :. • -• ...• •• : .. .. :,•,......- • tion not for .profit; !SAILBOAT s •• . ▪ .• • • .: , . - • : --•••• ••••, ... „,•••• • i *MY MANAGEMMT, INC., it corpora- . •.• . .f. • ••• tion; ..TLIE CLUB ON SAILBOAT ICZY, t ... • • • • • " • . • • •• • .0 •;.• • • •• • • • it . • -• . . •• • • • .. • INC., a coeporation, 44•AURICS s .• , • • •.: • '• FERRE, as MAYOR OP ME cirt OP nrica, FLORIDA; QWALON CONSTRUC- s , . . .., • • 14• .• "ION, INC., a corporation:AM= s • CONSTRUCTION CO.„ INC., a corpora- tion. t • ••• 4446411646.••••••••• its4Itc,1 in Dada Catusty, 'Lida, • Defenc4nt a. a. • • • .4 •• • • • • • • ••• • • • • • • • • • . a • • • • Ar• : • • • • • • • . - • • .14 • • • • COMPLAINT mit mOntlf.OE Pow:m.4mm, APPLICATION FOR REcEIV77.11 AND DIKTER REf.TEP Maintirf sues alto Warendants anti alleges: • • • • 1. This is an ashen to foroclorm a mortgage cosi rota property • • 4 666 • • '• • • s ••• • ••••,- 4•••1 • • • ••• • ; f • •41. • W.'. r • lb.* .41* 1.41."14 114.1114.4 F.1440,4 • i p3atntLrre Ire (he assignees Ise, ihdabit A) OE ter per• r7!`' note and tlartt,c Vie, tinted Ottoiyr 22, 1971 end recorded oft November 3, 1971, in 0. tt. Rook 7429, pp 10-•31, PubWie Records of (fade County, mortgaging the property danceLbed in Lt (Composite Exhibtta A and E) , and of the modification of the trtortgage, • recorded on Augua t ' 31, 1972, in O. it. Book 7872, pp 430 through, 43S, Public accords of Dade County, and recorded March 14, 1973, Lm O.R.. nook 8174, pp 505 through 51.1, Public Records of Dada County (Composite Exhtiits b and E) , and consolidation of the note (Coin-. posits Exhibit El, artd the second modification tha�raof, , reeorded; • . •• . •• • • • • • Nay 24, 1973, O. 8298,. pp 619 through 626, Public Records of Dade • County, .(Composite Exhibit G) , and consolidation of note .partaira ng thereto (Colnposiita Exhibit it); and of the third modification filed. August 1, 1973, with the Clerk of the Circuit Court of Dada. County, Clerk's Pile No..73R 177548 (Composites Exhibit '), and consolidatted. motes pertaining thereto (Composite Exhibit M., • and Plaintiff 619 . • : the assignee of the "Continuing Guaranty" (Composite Exhibit L) . .,.66 3. On October 22, 1971, Defendant, SAIL'3C2#T iCEY. 7 TC. ' CSAILBOAT) . executed and delivered a protaissory note and raortga• ga securing of. it . .•.:,x •.„•.t..... •. 'to Plaintiff's predecessor, N. CLEMENT SLADE; JR:. • as no.ra izee ofr the • Trusteed of FIDELXTY MORTGAGE INVESTORS, a Massachusetts Susitzess • Trust (SLADE) . The mortgage was recorded on November' '3, 3.971,. in. O.R. hook 7429, at pages 16 through 31, of the Public Records of • Dada County, Florida, and mortgage the property described izi . it. • then owned by and in possession of the mortgagors and copy of the • note is attached (Composite Exhibit 13). Co -maker on tha note* was ANCRICA 4. On October 27, 1971, Dagandant,• SAT430AT KY, XUC., executed owl &sl.ivor'ed a "Conveyance Dem! to Trustee Under Land -Trust Agree.. • went" to Du undtsnt:, CT'x'K AA'x'lONM, %WIC or REAM, ttiaaai,Plorida (cm' • Fr►ieioNAL) . covering the nuhIcct taropt,rt-y, and said ?mate* bec s .,, 1;9 +'L title u:vnsx aC #;ab et 1;uuct (CompciuLte Exhibit 4). Satd died '• • ei i 4 was mufti on iovtmbor 21971 tuning will the artfait*ibla awnlro pli snt!. en' slid #raorent a Lp ntn LA si i'O.!i gai. 7aals01W cm, (Almfi`ucAN) . Ckeltgariala , f acss39a, A kt eut lge end&Qt, *r s • r r r S. On August 11, 1972. Defendant, cm NATIONAL and SUDS executed a Modification of the Mortgage executed on ©ct obee 22, 1971 (Composite Exhibit D). and executed a Cotrzootivs Modification, as of same on January 18, 1972 (Compoaitra Exhibit E) , and •note evi— dencing increasing the indebtedness of CITr NATIONAL (Composite ' • Exhibit i) . .• G. On April 30. 1973, CITY NATIONAL and BL.tos executed a "second Modification of Mortgage Agreement" (Composite Exhibit G) , • • and delivered a promissory note (Composite Exhibit f1) evidencing . further increase in the indebtedness of the Defendants, SAILBOAT • • and CITY NATIONAL to SL,ADE. • • • •T.' On July 9, 1973, CITY NATIONAL, as 'rrust:ee ardtS r.EQ10,44 AT ._ -and AMMERICAN . as Borrowers, and SSE, as Lender, executed a t�otii. • ficiation of Loan Agreement (Composite Exhibit I) , increasing the debt by $950,000. to a total of $B4O00,000. owed by CITY NATIONAL,.. SAILBOAT and AMERICAN , to SLADE, and the.result was that the parties entered into a Third Modification of Mortgage Agreement as of 3'uly.. • . 9, 1973 (Composite Exhibit J) , which modified the subject mortgage to reflect a eecur .ty interest by SL' DE in subject property to the . amount of $8,000,000. The modified Mortgage aocitred a note of $9,000,000. referred to on page '2, paragraphs 3. and 2 of said Nodi— • f'3.ed Mortgage Agreement i erein a note in the amount .of $950,000.. • • • . • (Composite Exhibit. IV was executed and cc ns ol.Ldated with all previous stotas into a single a indebtodness of $8,000,000., all secured by said large;ego, ustd OA of eiad uxhi•t.ta mot forth in this paragraph reveal, thu o.a:td by SAIt43OW uiid ANZILIC N to Plaintiffs La . • • t'':,090.00a, Ow; acairstfrt int-ore: t ,trsd that. Raid debt is st:eared !a3- the R• Rt , f • yIT.4*.. 4 • i• 1 • I * a lbeodasaribed k o Dew and pr*party da ierI a d thsnaLa La pima qTaph 2, above. 0. On or .ab t Desarbee, '+ 3, SVn oN =LDnRtA, mina stank. holder of smai3*.i.'ve and its President, did,' en an LndLvLdu.L, attd In conjunction with and together with AMMAN ADVISORY anti., a corpn=�. tton, psrsvnally guarantee:, and did give a general contlntaiag guaranty to FiDELr: t MORTGAGE INVESTORS (the original mortgagee), its attcaaam ors, participants, endorsees or assignees, and DURUM GOLa8 R0 • A1aitiCAN ADVISORY CORP. (A MERICAN') did jointly and severally corttfuw's ally guarantee any and all obligations and indebtedness of SAILBOAT • • • •. • . KCEY, INC. to FIDELITY, now or hereafter incurred as aMUMpartatns ad •, ' to money borrowed pertaining to the improvement`of. development and/or • construction of subject property (see Compor ite Exhibit L). • • y• ,, • ♦ j 9.. Plaintiff now owns and holds the notes as consolidaied, . ant mortgage as modified. •• '.'• . •• a.• • 10. The property is now owned by the defendant Cr'l.*Y' t ATnON r as Trustee for Defendant. SAXLBOA ' K sY, INC.. Who hq .ds possession.., 11. -fine+ iat ofrtftetcritr•of"'thi "obrigut*orrweem.extetided-' om • 4• • ♦• • I • Qctobee2.22,01:3773,►tooNovembar..2.1., 19'734.br•C.T:CY iTt i `D tcT`,SA7LBOAT• • . • + •i •• • •• *•• •♦ s ti • ;'3 ••..' �. •• • • ••� .. • .. , .. . byway ent ith,therobsnefic aarism••of.th ITr—NATIflNA entus"1',��''t, • w yes It3CAi 'tx&ATE3C1t hem gum a ntor-de-f+endanta..(siti»M) • 3.2. De aeiidents 01T •NR' NA a firuatss•.ior=S&73+D0►T X3X.••► SOA' Bran-AMERTCRNIfif 3efentted..uoder,,.theminotne..(as..conso,L•idate.d.) and ..the, -mortgage.. (asa►moxiified)*.bys fe-i3; :trg"to•pay ►•t e►wl eysasat•.idua ...0n. • • November 2a. ••19734r:and•-hava••-otherw iu e.• de faulted. na. here inbelas agv rtbed; including" fa i lure-- to -pah• taxes ;and • properly-. pcotopt_the .. •. calla l • and -have- (*ailed • t a:•caraply with - their, a ensi ors ag�c,: a '., ' dated.a7ctpbar.-.24..;1913..- ibtt• fit) .'• • . 13. PlaintitE declares the Cull amount payable' under the notes (ds cana0tidat.od) and taorttjagli (au ssu4LeLod) Co be due. • s a 14. aatcndanta, my WV MAL SAT# ?and EVelitZCZW am pull** tt LI $A, 8''70, 007 , tltn a ii dua In prime :pa 1 on thA note. attd storticrairat intoront from Uetabar 23, 1973; and titia search expanse foe aoeazta�r, Lng necessary parties to this action; Legal okpanmas and Wm ama- pangsa incurred for preservation of the collateral. 15. Plaintiff in obligated to pay hie attorneys a reason+abLe fee for their gervi.raa . ,16. • The following parting claim acme &ntareots itt the land, upon which Plaintiff''s mortgage lien has sttaehed, which imtareata . are inferior, to the mortgage Lion of the Plaintiffs •'.. '. . .• 0. • a . • (a) RAY 1OND INTERNATIONAL, INC., a Florida corporation. �2iy virtue of a Claim of Lien filed December 21,. 1973, 0.11.8543. p.1375, publics records of Dads County, Florida.a • • (b) SASNE 'T ENGINEERING, INC., a Florida corporatir a., by virtue + of Claim • .. • ... r Lien filed ar _ a _ . _ ... _. _ _ _ _ w a A w Y a w M Y• •..+ p.1g13. pub1a.e records of Dada County, Florida. • ` ..(c) HA'TCttER4, ZIEGLER, GUNN AND ASSOCIATES, an ostensible psrttter•- . PIO 'Vona. • ship or association, or general partnership in Florida, by virtue •. -of a Claim of Lien filed February b, 1974, O.R.858A, p.1626, ptdal.ic • records of Dada County, Florida. .. '..::. . • (d) BLISS & InvITMW, INC., a Florida corporation, by girt u& of a Claim of Lien filed February 13, 1974,• O.R.859B, p.1661, public records of Dada County, Florida. -s • • • o. • •; (el AVALOY CONSTRUCTION, INC,, a Florida corporation, by virtue of a Claim of Lion lilad in O.R.CGLB, p.1359, public iccords of Dade • County, Florida. (t) ARtKIN CONSTRUCTION CO., INC., 4 Florida corporation, by virtue of a Claim of Lieu filed in O.R.662fl, p,1781, public rcaoCda or itsdo County, Florida. S• CO NTTNIViT L t:O;tC('(.S TNVEST645. a itattsschusetta numinous 9`rt;:+ viri oo• of a tea t:g41.4 dated J;tnu4ry 22, 1970, Mod March 20. 1970. % , , • •>r aas.•t f� a dvt+d f 1104 net �, .• S�•%��.� �-�• ��f�� ��i��ii +s�'���►td i�� � ►i:•1• �.M�i1 Z� •'J • Memt 26, 1970 undaf CLofk"t Pile tf0.70% 13277L 0Dd as sedi Lad ; M,3ifitot:ion if MaTtgatia bad dated Jana 14, 1971, Mud eft Neptt:ober 29, 1.911, o.R.73U , p.459, and au further modified by Codification of Mortgage Deed dated October 22, 1971, filed Oeta'b i 28, 1971, under Clerk's Pilo No. 718 21547, o.74.7421, 13.522. LwbLL records' of bade County, P1orida en subordinated to the lien of the i ,rtgags teed to Front?? dated October 22, 3.973., recorded under Clerk's Pilo No. 7111 23.9740, on NovaMbar 3, 1971, and as eubosdiste, area to Plaintiff's lien of mortgage in Agreement to 8ubor*Lnate,' . • dated November 4, 1971, flied November .9, 1971. 0.11.7436, pp.445• through 450, public records of Dada county, Florida. • ih) SAILLOAT KEY CO JOMIbIU M ASSOCIATIOts, • INC.,' as Leases and • • .. -. • as the Association and CITY NATIOM as Developer and. Lessor and • ' •,t • Grantor of easements, y virtue of an l improperly filed Declaration • of Condominium and Exhibits attached thereto, filed May ' 17.. 1973, with tie Clerk of the Circuit Court, Dade County, Florida, •t Clerk's . * • • Pile No. 73R 113573., in - which said Declaration there was contained .4 illegal. and unaccepted grants of road'and street easements as seeti•� on page 172 and Exhibit 2 attached to the Declaration; ease••, tint, • •Exhibit s, page 183.7i. of the Declaration; Parking. easements„..: • -• . • • Exhibit 1:, page 184A. of the Declaration; Recreation facilities ease.. wants, page 189 of the Declarations Marina easement, Exhibit M. page 192A of,.the Declaration; all attached as Etdtibits to the Condominium Declaration, in that there ware and are no buildings erected on sub- joct property which would quality the filing of the Declaration under P.S. 711, and, Furthermore, the aforesaid easements and dedications were inva 1 id in that spin were not granted with the participating joinder or consent of the mortgagee, or its'assigns. (L) £AILLIO.V1' I Y NLANNGCt4 N'T, I�iC., (ti.D.K. [i' W GEMIT, XtC.) by 1 vlvtuw of the atoredctt:c:ri.bad Declaration of Condominium, Articto a. . ua PAT, 148 awl 147 tterc'uclh 171, thereof. s • (j) SIT' COU OW SA/LOONT 1?4 =e., b vhituti o! ftltfbtt-. It to th* a fo adescribed Daeleratoft et combralmiwa, a�� is r * e"+':i:g . p7�ut �. S� E. �+ sty' . , th tt (k) Daftn4ant, NAM= PRWA, erg Mayor of tits city of Miami, Pleri.da, by virtue of paragraph (h) above, end by the furthur fact that the City of Miami, by and through its Commissioners, is impairing the collateral by attempting to downgrade the zoning of the subjeet'property. C CI V �3 T %s (CLAIM TO Ei4PORCE ;#WAR ►tar) . . 17. Paragraphs 3, 4, S, 6, 7, 8, 9, 3.0. U.1, 12, 13 end. 14 are incorporated by reference es if fully: set forth heroin.. 18. Plaintiffs are the Assignees of PIDELITT tIORTGAGR it•TVRSTORS (Exhibit A end Composite Exhibit L) , and Defendants COLWLRG and AtORICAtt are jointly and severally liable to the •. • • r. Plaintiffs for the obligation owed to Plaintiff, as • stiti• forth' : i s • in Count 7 and as defined under the Contiinuin J Guaranty, (Exhibit id. •. 3.9. This is an independent action to enforce said guaranty to the extant that them be any deficiency after .the proceeds from'a judicial sale. of subject property are applied .oai the debt ' owed to the Plaintiff. . • ... ssa —'• •': • t 20. There is no intent in thins action to enforce the guaranty. . •ailtich is the subject ;Ratter of this action, 'until afters a judicial. ua3a of subject property has been made, • 21. The obligation guaranteed by said Defendants-Guaraatora to Plaintiffs .is presently duo, unpaid, and owing by the Defend--' ants CITY NATIONAL as Trustee for SAIL0OAT and Ate .ICAW. C G ct N T T r tl%l" 'iaxci?ZQN iron RCCEIL int) 22. "Chit: in an application to asppn3.itt a Receiver for the t:ti`,sjact• itrtIjos:ty. *1 • 6 1 1 7 1 • ' • 1 23. rho property here inabova dsaoorLbed has bo o coder the m oluaL,'.s pmaga2s •or, and contir zt tie defendant:, ttZV.2L2, CV'VY NATIONAL and MUTOM COLUMIRO, since prior to October 2=, 1971.. 24. Plaintiffs have a mortgagee's interest in said property, which is collateral for a debt in the amount of $9,000.000., and said property is being jeopardised by said defendants in the . following manner: • a) The zoning of the property is presetit:ty under • • • attack by various civic organizations and defendants have • ▪ . , •; • 4 . 4 Y , failed to properly oppose sane. • .. • y , •`• •. • , •. • ••tit• • • .14 b) There is presently under appeal by the city og i Miami a Circuit Court ruling that, the present SuL1d•iag L rmtt a • + . .. .4 • • ,, • • shall stand as an exception to the Duildfng Coda,.•ant plain...-. •...:'- •. •• •. • -. a :•''•` • , tiffs have been forced to pay fees to attorneys to defend I. against the appeal, and e�1efendants will,not. Xf the pending • • • • • . • . • •4•• : '. .,i.• .;, • ; •y �!'•t • •• • • litigation is lost by defendants there will be additional . - • expenditure requirements by the mortgagee • or its successors.: - • . • • • •.••A •• . ` ♦ •• f• -in the amount of several millions of dollar, in order to • • • • 2• • • •• • • obtain a new Suilding Permit, thus depreciating tits+..vahta'►. •+'•+' '�•,• `••t•.••d.•.••ys 2�r•r•a'�• •,�•+!elf: .'.i'i. ♦ air ••••. . . t' ,rZ :. •,) 4• : • ••.'a 1F'•+ 4':•.a 7iJ•!•1r 4 ' •1.•• •- `•�t•i. • r • . •4 ..., .•. ,• .4. iK ., »,'••• • •• • ••• •• . • •' ••• •• •• t . • • . • ; • • • ' • . • f , •• o. • • • • • • .' ' c) There is a hearing on the regular agenda of • • the • Miami City- Commission 'and a special hearing by the C sson* i„ • on September 19, 1974. The purpose of the hearing on September �• ..w.r+•w • . • . • 4 19, is to determine whether to downgrade • the zoning of the • .. • subject property from R5 to Rd. Thera has been a prior'bear-.. • ing on the subject by the Commission at which the defendants • in interest did not attend or attempt to protect against downgrading. Plaintiffs fear that the property, without • proper reprosentet Lon of the owner and the plaintiffs, will be duwa u,aon:4, and thlt there will tie a Multitatl.lion doLlar .ca deect l•on in the viz tw{ of of* 4 property„. • .• k • _i *$ *M baraftaatmoa Ld..rus tp spat, l:a .aa..Eogotha. ►aaue.. iM oA the tUblu baLLD.vL as . d fendantu wi1L..nnt pay same for the .yuer Ly74. 2G. Where must: he supervision over the property and its wpm Lip meet and construction in order to preserve the present Build Lag pQ=aLt. 27. Plaintiff: have no other adequsta remedy and a Raca►fvarr is necessary in order to protect and preserve the interest of Plaintiffs in the property; or in the altornatfve 4. COUNT • APPL ICAT ZON MR A RESTRAntruo own) • . •... 28. This is an Application for a restraining order to restrain. they City of Miami. from holding hearings and voting, by and through its. • • - •., Vy.. -. . • Commission, on whether or. not to do:ongrede the subjeci -property froze • ....• y • R5 to R4. . • ' 4.... •••. • 29. • The subject property is present3.y`being foreclosed ega3.nst• by the plaintiffs ` .0.4... •' : �t.�•.• . ` ••, «p .. 30. Until foreclosure is completed there will no€ be is existeanc an interested parry '•or owner with standing to protect Plaintiffs* ffs * ° = - " `• • •♦ ate•• •• •' ; • . • . •''' • ; 7. • .• • • • �7• -�,.•i.~i1•.� •,�r•�• '..1;.i..q' ••-.i.••P',. • interest in the property by proper use of the Courts Of this State:. " .• , ' . . . , •..,• .. :4. .. . [. •i.. 2::. •• .. ;` •. ..; .. •• : •. . • •• • i••. •. ••• • ••'M;.•••,;..• • • .•31. There is ••presently scheduled a spectaL heeearing' before. the. ;, • . • Miami Cit • • Commission on September 19•, • .974,„ on whether to downgrade es the subject property to R4 or less from its present R.5; .• t • • .tie.. • • • •. • 32. The present mortgagors have demonstrated no interest or • • • • • • •? • • • ••. • •• • R• • inclination to protect their interests or plaintiffs' .interests in•• the property by properly protesting any change in zoning. 33 . Unless an Order is entered restraining the City from holding smell hearing, irreparable damage will result because of lade; of re-. • presentation on behalf a plaintiffs. • • -9. • • • •• 7 � r r lot 9c t mom;, Plain tf a dammed as MUM* That thug .Covet to •gin L LiolLett DC Wit causes met Iota . 2. That pi. inti. no be grantee an accotantin; of the sum due ple.intiffn under the note (as consolidated) and the mortgage (ea .• modified) end if the sum is not paid within the time oat by this Court that the property be. sold to satisfy pl.aLntiffaclaim. 3. If the proceeds of the Sala era tnaufgiciant •to pay t#ta! pla'inttfta' claim, that a deficiency judgment be entered for the sum remaining unpaid against the Defendanta-Cusarantora' jofntly•and severally; against all other defendants liable; and the eatate.,od • the defendants, and that all parsons claiming under or against that •• . • defendants state the filing of the Notice of LisPendaeng ba fflrclas+ad.• ••..•• • 4. That this Court adjudicate that the plaintiffs' tat rtgaga• . ; :_ titan is superior to all. liens and claims by any other defendant to • • • ' this action. • •• • • • • t . • •••' •�••' .rJ..• •. a •• •Ito" • . t•44 •• •• • ••e • y • •• ••.•-• '• ', • .•.•'• a♦• •_ ..t•.x�+�a •• .•♦ a•• •••••••. • •' •ems. • . S. • That this Court adjudge that tha Declaration' of Condantinium,; y defendant,CITY /12 ►?ZC TAL BM K Or MUM i es Trust$a'- else' y tn1 . Trust No.5042-9, and the easements andlessees; granted thszerix* br• sau27°.:.. .t. . and void - ..'• ♦•• t ; •• .•ft-'::• :x : . :. . •• : t is l • • r••,•• ..�.}• �•' ' � ••�•►•. • • w► s. • "� i, •. • • ' • . • •'.• ` • Oat *. •. • `�.•..�0.. . • • 6. That this Court enjoin the City of Miami fro.nt downg tiding .the. • ♦ •• .• ♦ ti y .. . •t •• ••-�7 •• • zoning of the property from R5 to R4 or less• ' . .• ••• :;. • , • 7., That this Court appoint a Receiver in this action to take • . •• ••, , • , • • • • • � • ♦ . • • • •` • a ••0 8. That this Court grant plaintiffs their attarneya' • fast in this action; damages incurred under paragraph 14, and attic:v.daa gas charge of and administer the subject property.. • • • horainbefore described and such other relief as is just and proper. • • SNYZ0•121., Y MG, ST1itN 4 This iEN3.,OM, Attoznc'ys for Plaintiffs 1799 N.C. 164th Street North MatnL Rsac[b, i" lorida 331.62 945-.35 55• • Dy J�;ra► h Toidund. Of Courts aL or '• • • • K • .• :*4 • • • -, . _. ....."••••••••..••••••••• 44A ..-..- Y••441,4R.. rop f) O i, Sdr Agent for the plaintifZ CM; afto first lotting duly Sworn harQby dQpasaa a that the foregoing 1311agations are tram and a rroet to boat of Sty hnowladge and beliez. . of at. SWO (N TO AND SUBSCRIBED bsfora ma this day of August} 1974. Notary Public State of Florida • My Commission Expires: MAR 'kin STRTr Of flOt1^R e! ill"[[ 1' CCf•' I Gh UFMS arm ab, 13 iNIU 5i 11dq IYSUE,IMLF i;rwE�ihaliiAt� • • t�` :.1:16.1tApp a fl1A. 748 75 nt.4, JOIIN 4arr S1'hNC1 R, etc, , et al, Plaintiffs, diVS- CITY NATIONAL RANK OF MIAMI, et al, Defendants. IN tip! CIII(XYIT COURT Or me um 11.. ,it3,«, c1Rt'131r IN AND VOlt DACE C OUN l'Y, P LORIDA. C1 NI 1tA 1_. JUf lS11X 1 ION DIV CASE NO. 74-25348 (11) • • • • • • 1 • • AMERICAN ADVISORY CORP., Defendant herein, takes and enters its appeal to the District Court of Appeal, Third District of Florida, to review the Order, judgment or Decree of the Circuit Court for Dade County, bearing date, the 17th day of June, 1975, and recorded in °fficiai Records Book 9020 on Page1122-26and rendered on July 10, 1975, by denial of timely Motions for new trial author rehearing. The nature of the Order appealied from is a Final judgment of Foreclosure. All parties to :•-aid cause are called upon to take notice of the entry of this appeal. LAPIDUS & HOLLANDER Attorneys for American Advisory Corp. 833 City National Bank building 25 West Nagler Street Miami, Florida 33130 Telephone: 358.5690 BY: IUCI-IA ill) L. LA PIDUB CERTIFICATE' OF MAILING 1 IIFRI?f3Y CCRTJFY that a true and correct. copy of the above and foregoing was mailed to the following this 21st day of July, 197S: i-.A I'IIM1 !.S & 1101.1_,A NOti It Attcirneyt; for American Advisory Corp. . 11Y: 41 „:11. 4 • •: r. 4 : : j., i ' 4 44•. .• .. 4 Na' 141 4I ,a• a 1, • 1 • t. aR�..�,C.. M1 MI BMT. * ( Sr BUM The City of Miami Building Department by May of 1973, issued four (4) building permits to Arkin Construction Company for the construction of the project known as Sailboat Key, owned by Sailboat Key, Tnc., (Burton Goldberg). On March 15, 1974, the City of Miami. Building Department revoked the permits alleging that the permits had lapsed because of lack of construction (for more than 90 days) for which these permits were issued. Sailboat Key, Inc., appealed to the Hoard of Rules and Appeals of Metropolitan Dade County denying a lack of con- struction for the stated time, and in the alternative contending that if construction was "slowed" or temporarily abated, iti was "due to legal action" and thus, under the ordinance, the building permits remained effectual and active. The Board, in May 1974, agreed with Sailboat Key, Inc., and overruled the Building Department. The City petitioned the Circuit Court of bade County for Certiorari, that pet- ition was denied by Judge Milton Priedman on March 19, 1976. The City has filed a petition for a re -hearing which is pend- ing. Further, there is pending in the Supreme Court of Pior- ida a proceeding regarding a jurisdictional question as to whether or not the City may pursue this matter through the courts any further. *City of Miami v. Southeast First National Bank of Miami et at. Case *io. 74-13977 RELEVANT PG1:A9IUGS ATTACHED M 1 i s i t 4 • ,., THE CITY OF MIAM1, FLORIDA, & municipals corporation, VS. Petitioner, : SOUTHEAST FIRST NATIONAL HANIR OF MIAMI, a national tanking association, Trustee et al., : Respondent. t 1N 'fttE MOUT COURT Off' E 112f JUDICIAL CIRCUIT tN AND FOR DAD COUNTY, PLOUNA GENERAL JURISDICTION DSVUSMON CASE N0. 74-L3977 (Jud;a Friedman PETITION POIt REHEARtNO COMES NOW, the Petitioner, CITY OF MiAn, by and through its undersigned counsel and files this its Petition for Rehearing in the above styled cause and as grounds therefor states as follows: 1. The Court may have overlooked the fact that 3 of the 4 • building permits issued for the development of Pair Islee were issued after the first law suit was filed. 2. The Court may have overlooked the fact that the developers of Pair Isle after working in excess of seven months on the project, halted development of the project allegedly due to legal actior when they were winning the first law suit (First Amended Complaint in ti case of State ex rel v. Frank C. Gardder and Prances Gardner, his wife v. Sailboat Key, et al., was dismissed with leave to amend on November 21, 1073) and two months prLor to the time of the filing of the second law suit. 3. Possibly the Court overlooked the fact that the decision of the Metropolitan Dada County hoard of Rules and Appeals was totally unreasonable because after asking tho County Attorney for an opinion, a, after receiving an opinions from the County Attorney wherein he stated that the term "halted duo to Legal Diction"°,{, construed narrowly P. IS I:.)? r1 • . the Board construed that term to mean teat teny bn LWtat at any tiMe may unilaterally and without notice to anyone decide that his project has been halted due to legal action, thus prolonging the life of the building permit. 4. Possibly the Court overlooked the fact that the Building Code does not concern itself nor do or should decisions of the Board members concern themselves with mattora of business judgment. w n Et'DRE, Petitioner respectfully requests thin Honorable Court to grant the Petition for Rehearing in the above styled cause. I HEREBY CERTIFY that a true copy of the foregoing Petition for Rehearing was mailed to Snyder, Young, Stern, Barrett & Tannenbaum, P.A., Attorneys for Southeast First National Bank of Miami, 17071 West Dixie Highway, North Miami Beach, Florida 33160, and to • Stuart Simon, County Attorney, 1626 Dade County Courthouse, Miami, Florida, this 29th day of March, 1976. JOHN S. LLOYD, City Attorney MICHEL S. ANDERSON, Asst. City Attorney Attorneys for Petitioner, CITY OF MIAMI 65 S. W. First Street Miami, Florida 33130 ay:v • a. • Ztt 'ru CtttotJr Cotn'r OP Ttla Li.L'VV4•41 tITUDZCLV. • CtttCLir'1', . IN than rox COU.NTY,. "tsLOPIVA. • Ttttt CITY Off' MIAMt, 'LOflXI A, a municipal corporation, . Vet a # Cone ` . .466 • ♦ • 4 • . 1• diction Division a0UTSEST FIRST NATIONAL SANK o? .. ;,;. ,No. 74-13977 t12.). a national banking ,assaciatios�;, ',Crumble. AM= CONSTRUCTION ,COMPAAY and TSB BOA = OP 1 LE3 M©.APPI ALS .OP ... . usTROFOLVMS DADE COUNTY..,....„ , .. . . _, •. . 1Gepondante. / . • i ORDER DENYING WIT ©P tfSRTIORARRI fiha Petitioner filed a Second AmerL4 4 t.etit&on for trrit of Certiorari to THE UOARD Og , fULES, ND APPEALS OP i• TR©POLYTAII DADE COUNTY, together wittk.4 Sup, or ing brief.. The parties filed Motions to SupplemetLt .. .cord,, .and the Petitioner filed a Motion to Strike Portions At...the Reapond.ents..SOUTSZAST ?!US7` NATIONAL BANK 0? = MI, a .national banking association, Trustee's, and AMIN COSSTRUCTXOti CO )P NZ'S,. Prier.. The _court considered the Record, as suppten ented,,, as .requea t e4 .by both of the parties, but denied the Petitioner:s..krotion to .Atrike .a portion of the said Respondents' Brief.., ,,Upon..inspeetion of ,the Second .wended Petition for Writ of Certioraari and the „Record made .below of TUB U©MW of RULES AND AsPPZALS .ttj,' ,14E2`.210•2Q11A •kY UAU& COUNT, and having reviewed the Briefs submittetd by..th .respc ctive parties and . having heard oral argument on ,the .sa•id Second Amended Petition for ;brit of Certiorari and being made .fully advised in the . . promises, it ia, ADJUDGED: z ..'I MNM Ow , s w♦ •.. • . w• . w t y ,- w•• r Y • 1. That the I titioner' z Motion .for .Leave to rite an iU nnd.-Ant to true i cord Proceedings before the Me tz opoli taz Dade County 3eoarrd of Rules and ,Appeala by including therein the four (4) 4 lath itt rot o to is tho earti fiutt com ON Oa t mataa bat and tho Nemo its hereby, ucantodi Thu Corti c'o t itZara1 said Lshibitn part o tha tlacocd. 3. That the Reapondants,, S! UTIMAGT MIST i ATIO 1AL OF iMIAMI, a national banking ,aaanriativn, Tzuatea, and AUlati CONSTRUCT=GY COMPA tY' %., :lotion for Loaves to Oupplutient the Record to have ineludad ,i.n thG .it000rd form tlosA1 b OE' AULI S AND I P2ALS OF M2TA0i1.014TAN .!3Z DS COUNTY, rr ofin, the Ox aibitn that wera inttoc1uce4 .into svidnnce by the oaid taapondsnto ea reflected by .the certified transcript of the 2tinutas be, and the sarm. 3s hereby, granted. . 3. That the ratitianar:' s,p. tiora .to wtrike a Portion of tha Rszepondants, SOUT . Z Sft' FIBS ' UA'i'IOnAL HANK OAP N!Asll, a national banking association, arustca's, and AMIN CONSTaUCTIOM COMPANY% hriaf, be and ,tho ,eras .3.a hereby. den od. 4. That patitiohar' s Socond Amended Petition for brit of Certiorari to TH8 DOA D AF . t;,UL1S .AND APP8ALS OF 4 TfIQPOLI'TA:3 OAD2 COUNTY ba, and tha aamq ,is hereby, .r anisd, and this cause is accordingly diar fated.. • . ORtsi;lttz:D at Minnie Florida.,. on this ony of Marche 1975, by ., . .1 2l 4 1ty.� 1. CIRCUIT &WIGS •� Copies Furniuhed Counsel... ..2.. r • i R '1 THE CITY OP MIAMI, PLORIDA, a municipal corporation, Petitioner, va. SOUTHEAST FIRST NATIONAL BANK OF MIAMI, a national banking association, Trustee, et al., Respondents. t t' t IN THE CIRCUIT COURT OP TM UTN JUDICIAL CiitCUZT tit ANC! POR DAD COUNTY, FWtttDn GENERAL JURISDICTION DIVISION CASE NO. 74-13977 (Judge Friedman) SECOND AMENDED PETZT=ON FOR WRIT OP CERTIORARI TO THE BOARD OF RULES AND APPEAL OP METROPOLITAN BADE COUNTY. TO THE CIRCUIT COURT IN AND FOR DADE COUNTY. FLORIDA: Petitioner, THE CITY OP MIAMI, presents this its Second Amended Petition for Writ of Certiorari and states: 1. Petitioner seeks to have reviewed an order or decision of the Board of Rules and Appeals of Metropolitan Dade County purporting to reinstate Building Permit Numbers 72-13131, 73-2984, 73-2985 and 73-6132 for 4000 Pair Isle Street issued by the City of Miami Building Department, which said building permits had been declared to have expired by the Building Director of the City of Miami. Said Order or Decision was the result of a motion passed by the Board of Rules and Appeals on May 13th, 1974 and confirmed by the Minutes of the Board Meeting of June loth, 1974. 2. This Amended Petition is presented pursuant to Rule 4.1, Florida Appellate Rules, and Section 203.7(a) and (b) of The South Florida Building Code. Section 203.7(a) and (b) state as follows: 203.7 COURT REVIEW: (a) Any maroon aggrieved by a decision of the Board of Rules and Appeal:t, whether or not a prey ioua pa rLy to the decio Lon, ma apply to the appropriate court for a writ certiorari to correct errora of law of au doeiaionn. s 9 (b) Application for review shall bo made do the proper court of jurisdiction within five days after the decision of the Board. 3. Thiu Petition is accompanied by a certified transcript of the record of the proceedings including the certified minutes of the Board which include the decision Petitioner seeks to have reviewed and a supporting brief. 4. Following are the facts of the case: A. The City of Miami Building Director notified AMIN CONSTRUCTION COMPANY and BURTON GOLDBERG of Sailboat Rey Developers that Building Permits Numbers 72-13131, 73-2984, 73-2985 and 73-6132 for 4000 Fair Isle Street had expired and were null and void for failur' to comply with the condition set forth in Section 304.3 of The South Florida Building Code. The letter of notification was dated March 15, 1974. B. The respondents, by letter, appealed to the Board of Rules and Appeals of Metropolitan Dade County. C. Sections 304.3(a) and (f) of The South Florida • Building Code state as follows: 304.3 TIME LIMITATION: (a) Permits shall expire and become null and void if work, as defined in Paragraph 304.3(f), authorized by such permit is not commenced within 90 days from the date of the permit or if such work when commenced is suspended or abandoned at any time for a period of 90 days. *.********* (f) Work shall be considered to have commenced and be in active progress whes}, in the opinion of the Building Official, a full compliment of workmen and equipment in present at the site to diligently incorporate materials and equipment into the structure throughout the day on each full work- ing day weather permitting. This provision shall not be applicable in case of civil commotion or strike or when the building work is halted due to legal action. 2. • r • S. limas before the Board of Rules And Appeals mere es iotltwst A. WHETHER OR NOT THE WdRti ON TUB BITE RAH BEEN PROCEEDING POR A PERIOD Or DO DAYS PRtOR TO THE ANNOUNCED EXPIRATION OP THE BUILDING PERMIT, ACCORDING TO THE REQUIREMENTS OF RULE 304.3(r) OF THE SOUTH FLORIDA BUILDING CODE. $. WHETHER OR NOT THE BUILDING WORK WAS MALTED DUE TO LEGAL ACTION. s Determination of whether the work was halted due to legal action required both a fact-finding determination by the Board of Rules and Appeals and an interpretation of the term "halted due to legal action". The Board of Rules and Appeals apparently determined that the term "halted by legal action" meant any type of legal action against the Developer, which could have some effect on the progress of the work and not merely legal action which enjoined or stopped the work. 6. The following points are relied on by the Petitioner as reasons for the granting of this Second Amended Petition for Writ of Certiorari: A. THE DECISION OF THE BOARD WAS NOT SUPPORTED BY COMPETENT SUBSTANTIAL EVIDENCE AND WAS THEREFORE ARBITRARY. The Respondents' case was presented by Attorneys Hurray •Saws and Sam Daniels, however, there was no testimony by any witnesses on behalf of any of the respondents that the work was halted due to the lawsuits which were extant during the ninety (90) day period of inactivity. The only evidence presented on behalf of respondents consisted of a prepared but unsigned summary of certain facts relating to the appeal, 47 receipts for seven yardloads of fill delivered to Sailboat Kay from January 10, 1974 to January 33, 1974, a photocopy of an Order granting a Notion to Dismiss with Leave to Filo a Second Amended Complaint: in the case of State of Florida, . 1. • i • ' • i • • • • astral crank C. Gesr3;lor and Prances Gardner, at al., Plaintiffs, vs. Sailboat Rey, Inc., at al., Defendants, Case No. 73-6449, and w letter from Sank America Realty Services, Inc. to Mr. Burton Goldberg dated May 9, 1974, ntatinq that because of litigation affecting the property,Sank America was unable to close a construction loan. Zt was obvious that the evidence before the Board was certainly not competent and substantial. The prepared and unsigned statement was evidence of nothing. The requisition showing seven yardloads of fill also proved..nothing. The photocopy of an Order Dismissing a certain action with leave to amend shows at beet that there was' some litigation concerning the subject property. Finally, the letter dated May 9, 1974 could have no affect on activity which was supposed to have occurred between December 1S, 1973 and March 15, 1974. See: Florida MotorLines Corp. v. Douglass, 72 So.2d 843(F1a. 1941) . B. THE DECISION 0P THE B0ARD TO REINSTATE THE SUBJECT BUILDING PERMITS WAS TOTALLY ARBITRARY AND UNREASONABLE. Mr. Feroncik, the City of Miami's Building Director, testified that during the period from sometime in November, 1973, • all the way to March 1S, 1974, he observed the fact that they had poured a couple of pile caps. That the pile cap work was done on only two of the four towers. That he had been in the business for 30 years and that in his opinion the job was not fully manned as required. Thus, there was no doubt that work was not in active progress as required by the Code for a period of at least ninety days. Mt. Walt Stefan, an original drafter of the Code and a paid consultant to rewrite and amend the Code, stated that in his opinion, legal action would by a Court injunction which.stopped.the work, Mr. Stuart Simon, the County Attorney for Dodo Ceunt,, who was present at the meeting was asked for his legal. opinson as to the meaning of "halted tiuc to legal action". Mr. Simon rotund to give an exact legal interpretation; however, he did live several examples and advised the board to make its own determination. in ono instance he stated "to take a ridiculous example, but X think it illustrates the point, if, for example, Mr. Goldberg had happened to become involved in a marital difficulty and ho had said, 'Let's not proceed with the construction of the building, because once the money comes into my hands and it goes into a building this is ' subject to a claim for lump sum alimony and X do not want this to ' happen, so I am halting the building work ;:nd it is halted due to legal actions". On this point Mr. Murray Sams stated "i agree that is absurd". Mr. Vann, one of the Board members, stated that he was on the Committee to redraft this particular provision of the Code and that the term legal action was meant to be something that would force a job to stop. He stated "If a divorce were to force a job to stop, then that would be sufficient legal action " • It is exactly this type of reasoning which both the County Attorney and the Attorney for the Respondents admitted was absurd, that the Board relied upon and which makes its decision arbitrary and unreasonable. Mr. Schneider, Chairman of the Board, noted that some work had continued after the initial Court case was filed. Re then stated to Mr. Sams "I would assume you would take the position that ones legal action was underway, you could continue to work or you iaay stop work as long as there is legal action you have that prorogatLve". Mr. Sams stated "Yes, I think so, particularly with our progress at that time financing was lost because of the legal action". The argument of the Developer is that ho should be able to haves his cake and oat it too that La, once Litigation is started » • 1 1 . t 1 against him he nhould be able to continue construction as long. as he wishes and then terminate construction at any UM and call the construction "halted by legal action". It La this type of illogical reasoning which led the Board to conclude that the project wac halted by legal action. WHEREFORE, Petitioner requests this Court to grant the Second Amended Petition for Writ of Certiorari and enter an order quashing the decision of the Metropolitan Dade County Board of Rules and Appeals sought to be reviewed and granting such other and further relief as shall seem right and proper to the Court. I HEREBY CERTIFY that true copies of the foregoing Second Amended Petition for Writ of Certiorari to the Board of Rules and Appeals of Metropolitan Dade County was mailed to the following named this 4th day of February,•1976. Burton Young, Esq. Snyder, Young, Stern, Barrett & Tannenbaum, P.A. 17071 West Dixie Highway North Miami Beach, Florida 33160 Murray Sams, Jr., Esq. Sams, Anderson, Alper & Post, P.A. 7th Floor, Concord Building Miami, Florida Sam Daniels, Esq. 1414 DuPont Building Miami, Florida Stuart Simon, County Attorney 1626 Dade County Courthouse Miami, Florida • JOHN S. LILOYD, City Attorney MICHEL R. ANDERSON, Asst. City Attorney Attorneys For Petitioner, CITY OF MI MI 65 S. W. First Street Miami, Florida 33130 Hys'1 c(��i�Tt +�iS.. N An�$on •.. , ;10 IN THE °CIRCUIT COURT Or 'M In% JUDtCZAL cuRCVZT IN ANa FOR DDADE COUNTY, FLORIDA GENERAL ,JURISDICTION DIVISION CASE N0. 74-13977 (Friedman) THE CITY OP MtAMI, RIDA, a municipal. corporation. Petitioner, va. SOUTHEAST PIRST NATIONAL SANK Off' MIAMI, a national banking association, Trustee, ARKIN CONSTRUCTION COMPANY and THE BOARD OF RULES AND APPEALS OP METROPOLITAN DADE COUNTY, Respondents. RESPONDENTS' BRIEF SNYDER, YOUNG, STERN. BARRETT & TAIOTENBAVM, Rh. Attorneys for Respondents 17071 West Dixie Highway north Miami Beach, Florida Burton Young fWTpl*. YOUN0. OTCAN, OARRCfl i KaNNCNNAYM, P, A., ATTORNK*R of taw :swum MlatSI •CALM, 11041114 $IRt;O • . • it •• . i Table of CitationsIle ••.......••••.....•..•.•..•.:Z Preliminary Statement .. •. .... •'.�+� Statement of the CQee and Faets.............•• , ..2-8 Point on Appeal ....s• •••..• Argument.. . . • • . • • • • • i • . • • 9 1©-1S Conclusion. •.••••.••••.•••.•...i•• • ••••SAG Respondents' Appendix...... Separates Cover si iprR• YOUN+9• 1WM. 011NRE•l 4 V44att4PA191. P. A., AflONMEri M LAW Immo,* mom *um noun iuso Is . • P. • Sacker vs. Merr*ll 20 So. 2nd 912 Pla. 1944 »QCroot vs. Sheffield 95 So. 2nd 9l2 Fla. 1957 Gracie vs. Damming 213 So. 2nd 294 2nd Diat. 1968 State vs. City of Jacksonville 133 So. 114 Pla. 1931 U. S. Casualty Co. vs. Maryland Casualty Co. 5S So. 2nd 741 Fla. 1951 igint 10 10 11 10 1 P1a. Jur. Administrative Law and Procedure Section 160, 377 11 South Florida Building Code Section: 304.3 2 304.3 (a) 2.' 3. 11 304.3 (f) 3 203.5 (a) (1) 3, 8. 14 203 (2) (b) 3. 8 203 • i3 203 (b) 14 1114VAtll, YOUNG. POW 11ANRETf i TANNPIHAUM, 1P. A« MTARNEY$ AT VW — NOVO WAMI 0EAp4. ftORIOA SHOO r ry i r This in a Petition for Writ of Certiorari From an adverse ruling of the Metropolitan Dada County Board of Rules and Appeals, reinstating four building permits after they were revoked by the Director of the Building Department of the City of Miami in accordance with the South Florida Building Code. The CITY 0P MIAM1 was the AppelLoe before the BOARD OF RULES AND APPEALS OP METROPOLITAN DADE COUNTY. BURTON GOLDBERG, SAILBOAT KEY INC. and AMERICAS ADVISORY CORPORATION d/b/a SAILBOAT KEY DEVELOPERS, THE CITY NATIONAL BANK, Trustee, as AIUC=N CONSTRUCTION COMPANY were the Appellants. An Order has been entered substituting the SOUTHEAST ?XRST NATIONAL SANK OP MIAMt, a national bank- ing association, Trustee for Burton Goldberg, Sailboat Key, Inc. and American Advisory Corporation d/b/a Sailboat Key Developers and the City National Sank, as Trustee. in this brief the Petitioner, CITY OP MtAMI, will be referred to as the "CITY". The Respondent, SOUTHEAST FIRST NATIONAL BANK OP MIAMI, a national banking associa- tion, Trustee, will be referred to as the "BANK", ARKIN CONSTRUCTION COMPANY will be referred to as "ARKIN", METROPOLITAN DADE COUNTY BOARD OP RULES AND APPEALS WILL BE REFER? TO AS THE "BOARD" and the Respondents collectively will be referred to as the "RESPONDENTS" • The term "RESPONDENTS" will also be used to include the 1. 44rX4, xaiwa, VIM 4 11044Nw*,11.4. AnotwtlsM*Aw •. v na.t 4snuu • K001444A44matsseusemslWt t former Respondents, i.e. the Appellants before the BIRD. The following symbols will be used: T for transcript of Proaeedinga of the BOARD on May 13, 1974 L for Certified copy of the Letter of AppeaL dated Mach 28, 1974 M for certified minutes of the HARD meeting of May 13, 1974 EX for Exhibits presented by the Respondent at the BOARD meeting of May 13, 1974. A for Appendix AA for Respondents' Appendix S ATEMSN ' _bF.Ma 2NA ANIf F + IA The Respondents filed an appeal to the Board of Review and Appeals from the decision of the Director of the Building Department of the City of Miami, Mr. Robert E. Ferencik, in which he declared Building Permit Nos. 72-13131, 73-2984, 73-2985 and 73-6132 for Tract A Fair isle Revise, also known as Sailboat Key, 4000 Fair Isle Street, Miami, Florida, expired and are, therefore, null and void. (AA1) Mr. Ferencik'a decision, as shown by Respondents' Exhibit, was based on his interpretation of Section 304.3 of the South Florida Building Code. Section 304.3(a) provides that: "Permits shall expire and become null and void if work, as defined in Paragraph 304.3(f), authorized by such permit is not commenced within 90 days from the date of the permit or if such work when commenced is suspended or abandoned at any time for a period of 2. INVDI , rouna. fffsN. 1191HIeT! a TTNN:NVAuw. N. A.. AITORMEr= *r u1w •••.u.rtr., WWI MACH. f4OkSDA sis o r R 4 • i t 90 days+" Section 304.3(f) provides: "fork shall be considered to have commenced and be in active progress when, in the opinion of the Building Official, a full compliment of workmen and equipment is present at the site to dilligently incorporate materials and equipment into the structure throughout the day on each full working day, weather permitting. Tka oyi,stnnha].1 no be applicable I.n case of e&.vi.L com toti,Qn o strike o �rhen tt�e bui�dtna _work is h ited $ue_ o leaa]. action." Section 203.5(a)(]) empowers the Board to in- terpret the provisions of the Code and Section 203 (2)(b) empowers the Board to "affirm, modify or review the de- cision of the Building Official wherein such decision is on matters regulated by this Code." The Respondents claimed below that the building permits should be reinstated on the grounds that a) the Respondents had done work on the project within the ninety -day period as required in the South Florida Building Code: and b) the construction on the project was halted due to legal action. a. In other words, Respondents respectfully conten- ded that under the circumstances the proper and reasonable interpretation of the Code is that the work was not sus- pended or abandoned for the requisite 90 day period within the meaning of Sections 304.3(0 and (f) . In supp:.rt of this position, the Respondents submitted evidence below in the form of exhibits/ to wits 3. smug, YOUNG. 4TERN, PAUR[ff f. IANNENAAUM. P. A„AflOINEM$ AT SAW .+ NORTH 641MI natl. fLORtD4 311160 3., A short factual memorandum (A04) (T741) 2, Forty -Seven (47) requieLtion i3,ipo Dee fill and a statement from Arkin Conatruetion Company, Inc, specifying the cost for the £LL3. in the amount of over one million dollars, (A9-20, 29)(T10) 3, An Order dismiroing First Amended Com- plaint with leave to amend in the bade County Circuit Court case filed against the Respondents; to wit: pate ex raj,, rack . ,Slardr .a E'rnees Gardner... et a1._ vs._ Sa a e. (A21-23, 30) (TL1-16) 4. Complaints filed in both State and Federal Courts, State .ex rel. rank IL. Gardner ar4 Prances Gardner. et al. vs. Sailboat Kev, tnc„ et B,.., and Rirtc.Y,_Cel,lawav_ +fit, alt, respectively. (AA2--3O) (T10; 28, 29, 31)* 5. Two (2) letters from the Sank of America specifically stating that it is unable to close and fund the project. and the commitment pre- viously extended to the Respondents had expired and would not be renewed. (A24, 29) ('ri©, 15-16) 6. Mr. Robert R. Feroncik's letter dated March 15, 1974 to Arkin Construction advising the construction company that the building permits had expired and were null and void (AA1) (T24, 32-34) b. Thus, it was undisputed that over $1,000,000.00 worth of work has been done under the permits. Moreover, continuously sine April of 1973. Respondents and Peti- tioner have been involved in litigation in which numerous individuals, associations and corporations are seeking %NIVEN, WOuNo, 4L0W, /IiIR4U a i 4. NNuNeauu. i', &. AT'Man SIT l►w .• oaks UMW Ut*Cft. fORIDA 11140 8 . • 1• • • judgments declaring that construction of the raft Isle project Le unlawful and illegal. tnjunetione are being sought to prevent further construction and to require restoration of the property to its original. condition. Damages) are also being sought. All of this litigation is still pending and none of it has been finally resolved, until the litigation is concluded, none of the defendants) and no lending institution can know whether the development is lawdui and whether anything built on the island must ultimately be reinoved. The pendency of the litigation has pre- cluded normal construction and development of the island. The Petitioner presented testimony of Mr. ?erencik, who was subjected to cross-examination. and admitted on cross-examination that tha exhibits evidencing the work done on the project as Submitted by the Respondents were in fact done.026) The Peti- tioner further presented the testimony of Mr. Wtalter Stefan, who testified that his interpretation of the language of the Code: "halted due to legal action" would actually require a Court injunction. Stefan was not a Board member at the time the Code was adopted. He was a scrivener who was told what to do. Nevertheless, the legislative history and intent of the critical lar?tage of the Code was recited into the record by various Board members who adopted the Code (the draftsmen) . 5. pow*. VOl1NG, UULAN, OARRUtt A ?AMJNt 4PAVM. V. A., Autumn At i,AW ..t1Akto UMW i1EA % m'ms amp i I i • Board member Vann stated in the record: 2 do not recall just who the other members were, but i do recall that Wait had different ideas about these particular paragraphs, and it was at the committee's inaiatence that it was changed, that these words were inserted... And the term iagal action was meant to be something that would force a lob to stop. Zt a divorce were to force a job to stop, then that would be sufficient legal action, but a man being arrested for speed- ing or oomething Like that would not be. (T62) Board member Schneider stated in the record: Walter Stefan was a drafter, if you will, of these amendments. It wash com- mittee of board members, and Walt Stefan is not a board member. Be was a paid con- sultant to the board. Therefore, with all due respect certainly to Walt, and with due respect to yourself. I would say that while Walt may certainly have his opinion of what is meant by legal action. those words are not necessarily his, because his duty was to write down what he is told to write down. in some cases, he is given a concept and asked to draft it, and I do not remember whe- ther he was given the words legal action or not, but the definition of the term in my mind is subject to the interpretation of those committee members who may have used it at the time. (T61-62) Another board member stated as follows: 6. 101YQtil• YQHNR. $TCRN. AARRETT i TANNCNRANM 4 A', A« ATIQRNCV6 At VW •+AtQRTM MUM *MN. f40*$RA 31$*D think it is significant that in these dates, for instance, Raymond was driving pi lea up through November or into the month of November, and then on November al Le when the first complaint was filed, not only asking for an injunction against the construction, but a1eo asking that all con- struction be removed and the site be re- turned to its original status. Being involved in the construction industry from both the design and construc- tion aspect, 1 can personally tell you that I would gamble on an injunctiun, because if I am building and 1 can go up this high, and the court says "You stop there," thin is fine, but when the court says "Now, you are up this high and tear it all out of the ground," you have got an entirely different situation on your hands. 1 think we will appreciate why the builder and the owner would say. "Well. we are now confronted with a situation where not only did we put in this amount of money and get construction to a certain point, but we are in the position now where we may be told to remove it all." i think we will appreciate why, and I am saying this in response to what Mr. Lloyd said about that time the owners and all parties concerned said, "Whoa. if we lose the next round and we now have to tear it all up. we are in a real mess. it is not going to cost us the million we have got in there, it's going to cost us that much to tear it out again." That is why i think we will appreciate the position that the owner was in wanting to say, "Okay, we have won so far, and there has just been more or lose a nuisance situation, but if we lose this one, we are really in the soup." (T63-64) 7. ihVO[11. i'ONNU. 51iRN, I*I1j i ; fANAMIAyM, P. A. *uoaMEvf AV aAW awl/DIN WIAMI AFACM, MAMA ins. ,. t r r�. tt is significant to serve that Mr. PareneLk's letter dated March 1S, 1974 clearly halted work (ML) 024, 32-34, 44-49) and that this Letter has never been rescinded. Under the authority granted to the board under Section 203. S (a)(1), the board inuignsassa the provisions of the Code and under Section 203 (2) (b) modified the decision of the Building Official and reinstated the building permits. These Certiorari Proceedings followed. S. Soma, vouaa, s,ERM VANRRtt a J ANNf uAUM, 0. A» MIORNEi At tAW •. NORfsN V4SMI Stadt. f4ORIDA 3500 • •` • a! • TIM BOARD ' S DSC/STON tS CLEARLY St PPoRTED 3Y SUBSTANTIAL COMPETENT SVIDENCS AND LAW AND, ?HFREFORB, MUST SS AUFIRN1ED. 9. SAWA. YOUNG, $I RM, NAAACu A TMINF IVAUM. N. A., ATUORNAY$ AT OM elm!ORM M1AMI M*M, GAMMA AMIGO , .♦ . 0. 8ncur�sZ TAB BOARD'S DBC1S1OK 28 CLBATtLY SU4POLTRD 13Y SUBSTANTIAL COMPSTB T BVIDENCB AND LAW AND, ?HBRSFOR8, MUST DE ArPZTU D, Although the petitioner has stated two points an appeal; A, whether the decision of the Board was supported by competent and substantial evidence, and 8, whether the decision of the Board to reinstate the subject building permits was totally arbitrary and unreasonable, the Respondents have re -stated the Point on Appeal in order to focus the attention on the one issue to be ruled upon. Pew rules of law are well settled as the pre- cept that determinations of administrative agencies shall not be disturbed on appeal if there is some competent evidence in the record to support the hold- ing. Becker vs.. Merrell., 20 So. 2nd 912 (Pla. 1944). Zt has been firmly established that a reviewing court should not substitute its judgment for that of the administrative agency even though the reviewing court might resolve the conflict in the evidence in a manner different than that of the agency. Accordingly, unless there is absolutely no substantial, competent evidence supporting the decision, when viewed in the light most favorable to the prevailing party, the find- ing cannot be set aside unless found to be clearly erroneous. S. c su It . Com a v r lan eu t Co}npanv, 55 So. 2ncl 741. (Fla. 1951), Rgaracat...y_sulteStialA, 95 So. 2nd 912 (Fla. 1957) . Any proof of illegality or abuse of discretion or unreasonableness must be clear and convincing and any &NYAM VQUNG, $ICI N, eAA&LIT A TANNCNOAU 9.'A.. AWWORNtI1 AT 4AW +» NQAMN & NMI ALM& f 0104 & 'O s t. f r • alleged abuse must by affirmatively stated. Tharp enut must be .a determination that the ru3inq has abooLuto3y no foundation and reason and in a mere arbitrary and irrational exercise of power. 8tato_va. Vity_oQ +7ackscnville, 133 Go. 114 (Fla., 1931) This reviewing court cannot theorize or con• lecture as to what evidence could have been adduced. nor can it invade the province of the agency and deter- mine which evidence it believes. If there is evidence at a reasonable man wou d_acce t as adequate to suneort the conclusion o the administrative agency, then , act o mu t not b d t bed on a 1. ,l ,Fla au„ r,.t. ?dmin&atrative Law and Procedure,, §1b0, P. 377. The decision below we respectfully contend must be affirmed if either of these two factors appear in the records 1. That under Section 304.3(a) work on the project was not suspended or abandoned at any time for a period of ninety (90) days: px 2. That the Board was empowered by Sec- tion 203 (a) (1) of the Code Axil did in fact interpret Section 304.3(a) of the Code. The evidence presented to the board gives more than the required needed "foundation" to affirm the board's decision on either or both factors. Succinctly, as to factor No. 1 (work was 11. PAWL MAID, $IM • VANsitwuuw. t. A, Attwatri • pal $ MI • $omitti M svattioash t • • •. • •., s 1 $ 41 •4 • eommene#.ng and not suspended or abandoned): A. Over $1,000,000.00 expended for materiaLs piles, fill (from March 22, 1973 through January 19, 1974, Arkin Construction Company submitted fifteen (LS) reguisi- tions for fill - A9-20, 29: 'T10) and other auppliea ex - eluding Workmen's Compensation and contractors' fees. B. Hr. Perencik' s admission on direct and cross-examination that this work was indeed accomplished, yet on March 15, 1974, clearly while work was progressing Mr. Ferencik sent a letter to Arkin Construction Company advising it that the permits had expired and are there- fore null and void. (AA1) (T24-26. 32-34) . Thin letter was clearly premature to say the least, but more seriously, it had the effect of causing a halt to con- struction since any further work on the project would be in violation of the law until Mr. Ferencik'e deter- mination and decision was reviewed by the Board. (T44-49) Succinctly, as to factor No. 2 (work "halted due to legal action"): A. The developers and the City of Miami were sued in Dade Circuit Court on March 15, 1973 (State ,ex rel. Frank L. Gardner and Frances Gardner. et al. va. Sailboat Ivey. Inc.. et al. (AA 2-10) S. The developers and various federal officials were reed in the United States District Court for Southern District of Florida on January 18. 1974. (.King ye - l ikive'4 y, et al.(AA 1.1-30) L2. fNTDR IrQVNa $Iuw 1 t*.niw$WM. r.A, ATI©&NMYMATIAW ,. 4/NKE.4446114114f • WODUM1•M11UA I$ ILQ*ID $) $ es . waits se Ice C. Both the State and the Federal 1. To enjoin further construction; and 2. Removal of all construction and restoration of the island to the original conditions and 3. to the state action, the developers in the city are charged with illegal conspiracy and are claimed liable for damages. Wag the work progressing on the site? The evidence is clear that it was. However, the issue that had to be decided by the Board, whether work was progress- ing or not, was whether, when work ceased, was it "halted due to legal. action" (pursuant to South Florida Building Code, 5304.3 (f) . ) Sections 203 and 203.5 of the Code grants power to the Board to interpret the provisions of the Code to cover a special case if it appears that the provisions do not definitely cover the point raised, or that the intent that the Code is not clear, or that ambiguity exists in the wording. The precise language of the Code is as follows: Section 203: in order to determine the suita- bility of alternate materials and types of construction, to provide for reasonable in- terpretation of the provisions of this Code and to assist in the control of the construc- tion of buildings and/or structures, there is hereby created a Board of Rules and Appeals, appointed by the Appointing Authority, con- sisting of seven members who aro qualified by 13. iNYOLR, YOUNG. WAN, * ARNE!! 6 TANNLMIIAUM. P. A., ATTORNEv$ AT %*W MONTN MAW OCACN. f{ORIDA 7Ai0 , • • • •• • ,• training and experience to pass on maittere pertaining to building construction. Section 203.S a) (1) t The Board of Rees and Appeals interpret the provisions of the Code to cover a special case if it appears that the provisions of the Cade do not definitely cover the point raised, or that the intent of the Code is not clear, or that ambiguity exists in the wording; but it shall have no authority to grant variances where the Code is clear and specific. Section 203(b): The Board ahaL1 have the power. to affirm, modify or reverse the decision of the Building Official wherein each de- cision is on matters regulated by thin Coda. The Board was presented with evidence that indicated that since March, 1973 the Petitioner and the Respondents had been involved in litigation in which numerous individuals, associations and corporations were and still are seeking judgments declaring that construction of the Pair Isle project be declared unlaw- ful and illegal. Injunctions are being sought to prevent further construction and to require restoration of the property to its original condition. Damages are also being sought. (AA2-30) Until litigation is concluded none of the Respondents and certainly no lending insti- tution could know whether the development is lawful and whether anything built on the island would have to ultimately be.removed. Accordingly, the pendency of litigation has precluded normal construction and de- velopment of this island. {A 24-25) 14. $h'OLR, VOUNQ, OMul fV VANNCNAAUM, P. A.AiVORN4,ri AT I** 0•MWIl$ NOW eggs*, RONDA DING r • i • i c Thus, the Board interpreted, under the tang, the language: "halted due to legal action". 'rho Board's decision was eminently correct. tf this is not what "haLted duo to legal action" was intended to encompass, than what did it encompass? Clearly, legal action is a broader term than judicial • action. Black's Law Dictionary, ?ourth Edition, de- fines v.a2# inter a].La, ass Of or pertaining to law. • However, Black's Law Dictionary, Fourth Edition, defines iudici al, action, as: An adjudication upon rights of parties who in general appear or are brought before tribunal by notice or process. and upon whose claim some decision or judgment is rendered. The board members point to the fact that legal action wan not synonymous with judicial action, nor was it intended to be. Those who authorized the language gave cogent support to this very fact. 0T61--64) Clearly, due to is broader than ha. Wsbster's New Collegiate Dictionary defines due to as: because of. In construing statutes. the reviewing body should not construe it in such manner as to reach an illogfcal or ineffective conclusion. . 213 So. 1a. stootAr w0UN4. mom imastn. 4 TAMNENdsuu. V, A. MIORNEVS AT TAW -N4RTA M1AM1 AEAC16 FLORIDA STSOO AMR •1 t + 1 • 2nd 294 t 'd Mat., 19G8) . The ruling of the Board and its interpretation of 004.3 (1) of the Coda in the only reasonable interpretation. if this project was not halted duo to legal action (halted becalm of a matter pertaining to law) then that section of the Code has no meaning in reality: and that is not reason- able. ,C©NCLt7SSON The Board's decision in interpreting reinstat- ing the building permits is eminently correct and ac- cordingly, must be affirmed. Respectfully Submitted, BURTON YOUNG SNYDER, YOUNG, STERN, n?tt RRT'T &TANNENBAUM, Attorneys for Respondents 17071 West Dixie Highway North Maui Beach, Pl rr da By: / '4..�4 Burton Young 16. swots, vcwNO, PENN, $ARRUtt 4 f#NNENSAUM, f. A.. ArrOmviYS At UAW «..&onto wpm 0r4OH,name% #$ti4 • • i, f 4 t HERESY C1 RTrre that a true copy of the foregoing Brief of Reepondente together with an Appendix.of Respondents has bon hand deLivered do the following named this: a2 7 'r"` day of February, 1976. Stuart Simon, County Attorney 1626 Dade County Courthouse Miami, Florida John S. Bloyd, City Attorney Michel E. Anderson, Asst. City Attorney Attorneys for Petitioner, CITY OF MTAMZ 6S S. W. First Street Miami, Florida 33130 SNYDER, YOUNG, STERN, BARRETT • & TANNENBAUM. Attorneys for Respondents 17071 West Dixie Highway North Miami Beach. Florida By: Burton Young vow*. rOUNG. sttRN. 4Ait1t!t $ VANIWENUAUM, P. A„ ArVOUI V$ As SAW ••• MD*T$ MPA $ OrAC$. i$O*UI )I$ 1 1 3. KINU CASE.* Bennis King, resident of Coconut Grove, brought suit in the United State District Court against the City, the United States Corps of Bngineers, and the developers of Pair Isle, to have Pair Isle returned to its natural state. Mr. King wants all the fill used in developing the island dug up and put back into Biscayne Bay, because he claims that the U.S. government had improperly and illegally allowed the dredging of the fill in the first place. Judge Eaton granted a summary judgement on March 31, 1976 in favor of the Corps of Engineers and the developer. Mi.� King has filed a motion for re -hearing of this decision. *Dennis G. King v. Honorable Howard H. Callaway, et. al Case 74-73-CIV-.7E • RELEVANT PLEADINGS ATTACHED 1 • • DSMNIS G. KUNU, t Plaintiff, UNtTS0 t;'t'h"TN 0/STRICT OOUM i fOU'T1tHRN t)ti?IUCT OP FLORIDA CASS RUSHER 74-73-Civ-JE -v-" t , °ttbun GitANTttiO DEPENDANTS* MOT OM POR SUMMARY ,3 HONORABLE HOWARD H. CALLAWAY, t ,.. et el., Defendants. • t tviAR 3 I %97t, �vyt i '1 • Unri �Rt ttiwt, u. 3. ul.t. rc. SJUDIV•ti . t JF t tet At the pretrial conference the Court reconsidered the pending motions for summary judgment. After argument of counsel and after an examination of the record in the cause, the Court finds that there remains .no issue of material fact and that the Defendants are entitled to summary judgment. Plaintiff, Bennis G. King, a resident of Coconut Grove. charges that the Army Corps of Engineers and the Coast Guard failed to submit an environmental impact statement or to declare that an impact statement was unnecessary in regard to the issuance of permits connected with the development of fair Isle, a small island in Biscayne Bay, adjacent to Coconut Grove. Plaintiff prays that the permits be voided and that the issuance of any future permits be enjoined pending the submission of an impact statement as required by the National Enviornmental Policy Act, 42 U.S.C. S 4332 (2)(c). Plaintiff also seeks to enjoin the private Defendants from any further development on fair Isle until the federal Defendants either submit the impact statement or make a declaration that one is unnecessary. • At the filing of this lawsuit, January 18, 1974, the federal Defendants had Jostled three permits relating to the development of Fair I:sI.Q. In Januar y, 1970, the Army Corps of Engineers renewed a dredge and fill permit for a period through 1973. The dredging and related work was completed in April, 3972. In September, 1970, the Coast Guard issued a permit to widen tho bridge to Fair Tale. This Kiwis al.t;a had a time limitation to it, and the widening was completed no 14t:..r than 1973. Aluo in September, 1970, the Army Corps of a Nftgintierb issued n prirmit to t"lnrida Power rind hi t• lay an' electric power cable on the bottt to of the hay from the mainland to Pair Isla. Thin cable wai laid no later than 1,973 and Ls presently available for two.. The developer) applied for Otter permits from the Corps of Engineers during the period from 1909 to 1972 but the applicatione were withdrawn before the Corps acted on them. to 1972 Florida Power and Light filed an application with the Corps for authorization to lay a submerged cable on the Bay floor across the waterways from Mercy Hospital to Fair tole. When th6 Plaintiff filed his action in 1974, this application was the only Fair isle permit application pending before either of the federal defendants. Since that time Florida Power and Light has 1 withdrawn the appl3.c.7tion. The National Environmental Policy Act (NEPA) requires all federal agencies to prepare an environmental impact statement for every "major federal action significantly affecting the gnviron- nent." 42 U.S.C. 5 4332(2)(c). The Plaintiff argues that the issuance of a federal permit in connection with private development amounts to "federal action" within the meaning of NEPA. National Porest Preser- vation Group v. Butz, 485 f'.2d 408 (9th Cir. 1973) . Since' NEPA had become effective on January 1, 1970, the Plaintiff argues, the federal s • defendans were required to either submit an impact statement pertaining to the three issued permits or to make some formal declaration that an impact statement was not required. Plaintiff is now seeking a mandatory injunction requiring the federal defendants to either submit an after--the-fact impact statement or to make a declaration that an impact ntatement was not required when the three permits wore issued. Under NEPA the timing of an impact statement is crucial to its aiynifivance. 'Cho atatuto provideea that federal agencies uhaLL consider the environmental impact of their united Oil WIMP ....... .. 1. Vise application in "hc'Ld in abeyance untiL further notice." Counsel sdviucd the Court at a recent pretrial conference that, for ALl practicalpurposes, the application in in the "dead file." further* the cnt.Ls . r i1 L ji.o project: is dormant for economic rename, and IC h4u3 Weil in tlsiat state for rs uubutalitial period of time. 7 action. Hy waiting until January, 19i4, to ccmg to Court, P1aintift denied him ic±lt t:ha only remedy available under the statute, namely, can in junction requiring the federal defendants to consider the +rhvjr3nmental. CUneequences of their rroeosed activity and to submit 1' en Impart statement. At the time of the lawsuit the Corps had before it only one proposed "federal action" -- the Mercy hospital uubmerged cable permit. The application for this permit was sub- sequently withdrawn. The other permits had either expired or con- struction under them had long since been compr'eted. NEPA does not require. an agency to submit an after -the -fact impact statement and thereby consider the effects of completed activity even though an impact statement might have been required before the activity commenced or while. it was in progress. Plaintiff argues correctly that the individual permits should not be considered in isolation but rather in the context of the overall federal involvement in the development of Fair Isle. If in the future one of the federal defendants is presented with another permit application, NEPA will require an assessment of the cumulative effects of past federal activity and the foreseeable effects of future activity as well. Conservation Council of North Carolina v. Costanza, 8 E.B.C. 1479 (E.D.N.C. 1975). There is'.presently no "federal action" and none is contemplated. Until there is some future °federal action" within the meaning of NEPA, the Plaintiff must rely on state, county and local authorities to evaluate the environmental effects of the Fair Isle development. With summary judgment granted in favor of the federal defendants, there remains in this Court no basis for relief against the private defendants. Consequently the Court grants summary judgment in favor of the remaining private defendants, including the inter- . venue and present title holder of Fair Isle, Southeast Fisat National Dank. Accordingly, l.y, it is ORDEHEt) and ADJUDGED that plain ACC's motton for $ summary judgment in •denid, anti tho motion of the defendants, tho Army Corps of Ungintera and the Coast Guard, is grantod, 'Summary judgment is granted to all defendants. Pinal Judgment will entor. DONE and ORM= at Miami, Southern Ditrict of Plorida, this day of March, 1176. 4 cctcounsel of record. • Un t.c States District Judge • • , • DCNN tS G. RING, t► Plaint:iff, t HUNORAhLU HOWARD U. CALLAWAY, t et al., Defendants. • UNIVEO MAVIS D1! rtt#C'f COURT SOUVtin;u i nr,TnxC'r OP molt:wit. C= It t4UMBRN 74 73-Ctv '41. This action came on for hearing before the Court at pretrial conference and the issues having been duly heard and a decision having been duly rendered, it is ORDERED and ADJUDGED that Plaintiff take nothing', that the action be dismissed en the merits and that the defendants recover'of the Plaintiff their costs of action. tlt L t,11 _clog; U... MO C . uThikt Kit t.t. F F �. Un t • DONS and ORDERED at Miami, Southern District Of Florida, this day of March, 1976. cc; counsel of record. 4 ttni States District �•udge 1 1 • • • � 1 Z i'i',f12 1i`ty� : 1 y e� i I `s D t* }S�y a./':�C'► }C�Of'.i'i '��'� • tca L rat Hill/ i�ii�/.A i�1t.a t•L L Of ri.�11•iirl & • t • C.Sr. 110. fi 1 Y• a " 1 . 1101+C►: t+BL tiM'►•1'r = H. CALL AY, Secretary of the Attu; I,tSL' ..ii:T C : t.t•Ittt.'L 1 C. Ctt1SStt, .td. , Chief of Enginaars of the Corpse o. Eng#aiapta: of tlsa. art ; .. a . '1CAT G =',.."12. C.V. `u.: Lt. 3,, . South • , Atlantic Division. Engineer. of the .. y, . " i. . Corps of Engineers; COW . : 7,.. C..... . f District EngLuof, the- othe- Ar ', - ..., !' ,Z • •- Corps of Engineers; At t=11. Lc -.a r t.y. ... • BEND , Cotraandan.t of the United. States Coast Guard, M it AbCiw"�'ir.t1..ts1L AttSTyIt C.• j�:1G .•:, DLstY`t�"'rt 1.$G.''..a"'. Life. of United States Cast Guard; Ci2Y : 1 i iO::A.L.x:) • Ir'.istee; E►t.7310:I DOLLS~ ; SA " 1:11•• - • t'"t. IC.Q 2o1A'srto•, A .....* .ic : ADvIson • • . Cb% 0: e0atOtt, d/b/a .SAI....-;=• • Y • • D ELOPERS, • • • " JiriC. a f • 4 • •• _ • . a • • •. ♦ • . Defendants. • . • • • • Plaintiff, by his undersigned attorney, alleges: 1. Plaintiff, a citizen and resident of Florida is and has berm a property aw er in the i.:*- .hate vicinity ot a project herein. called "Fair • Isle". Plaintiff's property is located. in. close prazs.. .ty to Biscayne .• ray in the northern section of Coconut Grover Miami., Florida, an area coasintirg prir.arily of single family residences. Said area is of . • particular historical and aesthetic significance, ore of t»a cattiest. developed in the farrrst:iva' years of the city, and coatsins historical «a�iMszc rrc;� streets, luxuriant . fa! is a, relatively too puputatiof • density, nod ,;:aint, wit/area., sr..g aphs:a eaS life style. harass* • 1. f its ; t., .'n . traacc'.!1'„? it4 & . ##1 .ita #nrs#4 vhi.4 h fitt'sTa."� 't4 tv3r3 f'.RiIt*trwil l i • t • • • . • • • t• eerier Ar•4f Xt:;acl .Mots i •.1•.0ji. Olt, and is olvf.+a d4.4 4,gttaof f.'.sa Cni.r.td xra:rs. ilsrs a to plai-.ri;. amd t:sa sorrni:rd:nr, C its re 9.M f !� �!i,t!t� cs.. ts.si..r. c,F i:.,.$r..zr ;Ind caves.' • • • • • • 2. Detendank, the honern5te Peverd H. Callawey, tu the duly appal -stied. end acting S‘.teretery at the Arriy, Defendant Lieutenant Cenetal Cribble, Jr. in the duly appointed and acting Chief of Evineere el the 1 Corps of En3r u the United Status Army, t =indent trigsdier Candtal C.O. tetchier L the South Atlantic Division Engineer of the Corps of Engineers of the United States Army, and Defendant Colonel Emmett C. Lee is the duly appointed and acting Distritt Engineer, Jilte Dietriot, Corps of Enelneera, United States Army. Said Defendante ate charged. by Lau And federal regulatione with the proper iSSUACC'a of permits under the Balm encliterbore Aenroeriation Art tri 1899f 33 U.S.C.L., gal et In; for Inter Ca& • dredging,. filling, ettai==t172,tif obsteeles asadiathargsm Immaigablar: 1 • •• . • • • 4 ?.4 :1 * • utters of the United States. • • • • • •• .46 • • a •••••••• 4. • • •• •• • •• • • • • • 8 • • • • 3. • Defeedant Adm.ixal. Chester E. Sender is the C cleat. of tha 'United • • States Coast Guard end 'Defendant Rear Admiral Austin C. at is thek Diertimt.. Commander of the Seventh CO2st Guard District, Vatted States Cowin Cuaroi plorida. Said Defettlants are charged by lav and federal regulations 'with the proper isseance of permits for inter alia, codification of bridges ' under 33. U.S.C.A. 1525 et sea and 49 U.S.C.L. 5165/ et 1!2!.. • •• • 4. Defendant City Natio:431 Euek, Trustee, is a eatioral beelo*AN corporation with its princiPel place of business in neap Florida holding • • • record title to properry described aa Fair Ulu recorded. La plat bolt 34, • # peg* 70 of the public records of Dade County, Florida for the benefit of ' . • . • • • Defcedants Durton Goldberg, a citizen and resident of Florida, Sailboat . • toy Ineoiporated ;Ind Areericen Advisory Corporation, dibie S*L1bost 'Key •DAVAlly0CS, VULCU. isre Flortde corporatione having their principal offices iu 1:1.traL, rtozitr. nne citiz,r,i end rosidente of Florida.. Said Defendants • 'pro;13.:0 to 4vq1u:. fU44-14. Fair Tutu, a sett 1314nd In Iliscaynft ray imo:pdiatety o(f Aw:'e Cocumir (4=10 71°: into "1311 C104rt3311*;iolt r.ey" vith four 40 ;:tovy tow3r31 A WI rOnl Larne a m4riee tor MI Fneht.:I, 4 tralpicat tm tr. 3 :taalu, F,Ardmi, wato:tAtts, 4 rrilevvrs pn, Et .rt 111::ttti, • • • $ • • 4 • • • # • 1 Juttsdittial et thL erut 44 temZeated nni eases leder IL • lq, *institution Artltlt I, tlotion 8, 24 U,S.CA it131., 5 U,S.C.A. PO: FIL2944 4/ U.S.C.A. 14321 it 31 U.S.C.A. 1401 et suri, U.S.04. 525A, An, 49 U.U.C.A. 11051 tt ta, 33 U.S.C.A. 11251 DI aa, 10 U.S.C.:. it 21, nag 23 u.s.c,k, 11351 et kno u.i.c,&. 12201.11 2ga, 'and 26 U.S11CJ. fL343, a and 11301. ,;= • 6. The propoted fait tale project will end hfta 'required dredging and filling in the navigable vatera of the United States, 'widening of bridges, • and construction of vorka in navigable waters in United States, dincharges into ta.vigable 'waters of the United. States, and. teac3 other facilitims L nnvisahloa. waters of the United State.snf.): jointly and vPtt qeLri ptartits taut= .• .• 4. that various federal. sato.tutes,,herattof.rma set.lorth and ethers whiedt =ay be . . app1itLlb The nece.ssity for these permits without which. the project cater4t be completed together with tha federal interact t sucb. =atter: ta • • federal. funding for the iacreeaedseuega capit' tteedaas, increased highwtiy capability needed and conservation funds expended on steadies and preservation of 33iscayne ray demonstrate that such actions, icaLvtdcaLty and. ct=teIettvety, • constitute r.ajor federal action. stertificnot17 affecting the quality of the • • human environment. • • • • • 7. The Fair Isle pr.oject as proposed will have a deva.static.; environmental . effect on the surrounding nr.ea aed its ecology. The proposed use is grossly - ...inconsistent with the predorinately residential charicter of the area awl, will. •• .• be en esthetic nonstrasity • *.observer that the preseet It is readily apparent to the cast cesual •• capabilities • • • • of the area will not handle tbe • • concentration of population, the increase in traffic, the itv=ease Le, der..and. for utilities and SettNiCO3, and the intensity of use which will result front tha proji:et. Tha project will obstruct the pinintiffss and other present • • pra?erty cun:Ar's view of Oistalne ray and milterially detract from the 'quality at tita 1.ntive The-. acetoay of 3Lavarpto ?Ay seal hp pctrzan,entiT • 4 4 1 • 1 • ir titottis.i! sdntsi •Atriced irt:'t i..:aa p teser.t• !.'_utr: ill t12 iltUlt. L? Lit vs g b' • • 'malt beams, .anoeists and Lishar=tan. the constriction and use o1 the Mani! In the proposed f,t hint will produce duet, tilt, toast, congestion, waste products, runoff from, posting tots, diltthargas trots pools wad with..!‘ voter tactttttns, and tinny other irtcfcoeato of itLr and aetoz pollution all of which will have a direct ittpact wit plaintiff's property • and plaintiff's use of the: impacted area. • 8. The yair tole project it tontroversial, has been the subject of public protest, and litigation it currently pending in the state courts contesting the validity of the proposed us+aundar local ordir.e►nnets, lasts, and permits. tate`bf t'tc�ricta�et: aT. v. 54flbaatr K .• tne. at al in. tha CfrttaLt~ Coast c+£ the Flee Judicial. Ciatevi t;t,, in anal for bade Cotmtn. • Plori+ , Carteret JurLadicticn Dititrion, Casa~ Number 73-64449. • • . . . • ,- 9. Section 102 of the National Envirenmental poiic Act of 1959 , . hereinafter rct:erred to "NM" states: • • • • - ibe Corr Tess tit.ttlzuttes and C!rects that.. to t%tt fetl:rtt extra. potable: (1) tt:$ p 4ii;ies. regulatioria. and p eatic ;awe cL the Cm. ,tr.td States shall he inte•{i. r,preted and administered is ;.elute»to : tr the p.r:i:ita :at iir.h is Vats autr, a»4 (3) sit ovse=•3 tt I the iledet21Coventment s'.islt-... . . ih) vtitim a systrntatc. ir.!erettei-titrsry spprcarb • which wilt insure the ir.tazrated use of the natural and soda' sal- \ • trent; ences a:td the envir.�nn ent:1 -design aerie inpissiri» and in.. • deeisiorrni J x which may have arts iWr: ct o rr: n's et:xi::a- (El) identity and t'.evetop melho4a and proctdan , is cat:. :inflation with the +Council en Environments' guilty estsb. .,, fished by sotithapter II of this chapter. which will insure that presently t;.-3t:satided envirorszentsl amenities and t—uses sway bt even appropriate carsiderst:ian in aects?a:,: alstos slorg with economic and technical cotnrders tiorat. (C) ir.ciute in very rccenenteeedstian or rowan WO pr»ttnr. Ate tar leaielatiost and other /major Federal acdonst si ,>t^. .- rattly A::*atlas the Qastity of the h o asr envieotarent, a tw•.• tailed st. total by t`.e responssibleoitcisi on--. , (i) the erreirasestsental i n nctat the proposed action. . (ii) any stovers, catiranmesetsl egrets which estnsot , , Iva:sr:Wed should the proposal be Intel =toted. WO alternatives to she proposed sitian, • • Cie) the rrirtions;itr botaeen torsi :Eat tern este of tnsn's tit iri%meat Ltt! the taeirs:eie)ziCle 1834 t ihasta• • twat a: Lan•tc: ns productivity. and i () ray a:Mller•ibte 41n4 irretrievable commitments of ttsstt:c r. it Men Weut4 t,,t iarniv.4 la title p; vaesa: souses • • Prise t•e re='.ilea rmr • 4,04 ateoretsitit. Vet Tv:pot:1144 Fall. tr_+t ci.:;i;, i!•;,..; ;vx..41i 04•1• At•.« L'etillt t:'* it;Art• .$ a! Slit' re14:rl aii!ei1 x::etta hes 1w:iPF., :A` by l!sw'2; !re•:si ••;. ,tlis. w ;V1 r`cott ti .toy ♦•9+iinn'R!lWti ors 3c.t 4:,•,3141,4. Cil,y'.ril:, i"l•.: i:,i.*^Cn r'i:t tc.4 ♦ .i4•i.4 eat a:: r• •. A jtj+r?itiate i' :re,.i:i:;,:::-..ti.,lli 4i"rc.•t,'t.•el, „04* ii• tt'r;'•l t+ 44;et,, •44 AR!!:r++ '.•na4ra3T.rq!1t 3:.rttee i,, ;`.i• t•t; .. A ,Set t..;•,}It t-•'il•.. 1"r•.•♦.stoVt. th, s;••1.st :') '' ,i4ai. gee neet'v t+i'!s';ts end to the plat:: 4 11;a6•i4.1 eft **Let:tul e » 'i %;t o to sad 0:41 .40,7.i=ay Vain t ripo,4 t;:tu;a j' t;3sie ccistitit.;rtevz•rtr4ww prM*41$14 • 1 1•• • • • N • • ••• • • . • • • er • api iti 1.i to 3::.i Cif rtortrer wyl�41. ♦b v'1 v7:ae::1'1 t3:te.itti tin Mel,* s1WWWP..iti're bra 191 It :III3Ie4f ►et•>►ar:'r,i t t`.na ,•t•f!rt'ote!+ trt4 lert-ti i' etU itee if wettr!t►:'.+1 VIC ik hitt,tletilt4e*. irit!t'Vr.f. trrl+ tiatl y,i it• t.? 0.e tlri`rii'i!.tt'J, t.' 4 11,,tert4 to • litttistiesso, Driste its is t1IAMI tatr!rteli,nsl te.'p r.ttit#tt itt 1t tidic*tlet AIM frftf.1t!!= 3 to:li t in :he (l:s!st' Of t:tiAin 44., reee t eht'iMttTt; •.t . tr P i°:± 3 nt•Sttiit!e to Stator, td,it::nrt, Ina Atti ih!.tt:!!*eise tstti.tl 1t tes'.srir.g, t-iil,.+izir.», seri en attit:g the 4ui1 ty et I esti• tot initiate oral tttli.•e peoloa'teet ie;a'-s:ina t t iOrs. :leg eNd rivolopmeetet tereurcl.otieraeti pro; eu: ett • tit) !'.IAA t1'14 COutttii bi 11Nt•iromine l,.11 esilior ebbed by sutki:sttee 11 et this rr:sp ter. 10. Section 1,500.6 ot the Council on EnvLranmentaj. Quality gu declines Limed pu+'rattaat to IrEP&. provie.x in i uhaeeatioa M • •, •• • ... The ;:zt ittorie at: et "teat Ted,* ;• • ett:t of :ma glattLarootIt atter•:tm the• quality at the htt!ftla ein tertraatrit,' it to. be Cbn:tr•.•r.3 by :teeftirs with a s 'tt to the overall, ttutttttath a iattw'u:t of the tattiort prottud. rei ttett Vrrir'retl etttorts and project_; tit tttc tent. end further re• titans cone.crn,i:ttcd. Such attibr.a may be letalltrtti in their it:matt. but tt there is #rotrntiai tttac the envtron::tettt =ay* tit itrlt}:i.a..ttg t:;:,w:tcd. tlic t.tttell tr.t is : tat be prepared. Proposed r?11cr :deers, : the: enslo: t.:tr:2t .t impact o: wittch likely to to it: -;:ly tositra+•ersial. should 1* covered la sit tares. In rorwiid.`t::tr vhat tees:i:t:tet r tjor action $iuntt4 tautly atietith!: the crteiron:pert. a:•-nw tiers thou01 bete i:a tntntt that the c::e:t of many Federal caltioi2.1 a:t011: a i :c;, ect or tcntrie.n ot pro;t":cc cast be in- . tilvitt,tal:r tir:•tit:•d bti. cumulatively tor:- sidert5.e. %:is can occur when o: c or tttor+e E.e.^•ries Otter t pentd o! }•etro plats • Into a pra:::t indivi".util, ritnor but cat- : 2ecti•::t t t'•tafsr rrsou:ces. tri:en one d& citioa lavo:vt.-t« a L:nited artas.:.t at i Money is a prrredent for action tot T.:L'en !xr^tr tas:s or s irese :t.: n de.ts•ion ut 1 Principle o.bat,:t; t. tutu: mayor tourer et action. or %vit}en seer art Oorerr..-Motet •wM i:+:e'di i4t .t1)• tl Irate �•detre.u/ictts 1 .About pa: t a1 aor.ecia of a t.3a ja act.ia i. • xt:r.'1 s h ctses, en environmental S•sii♦eant Inept*i..pa.`«Se er't'trfrprr-rA t treat. Xet»: ni avuot:� Tito C+a:t:.r.3• as Use baPis of a u:Titien urnanc;tt Of the tin- ; psct,s im;o:vcd, t.t availably to lusts". t *sondes In dotorreiv b; ♦ctbet:tar Sonag •, : sits to biro impact s . cnxats. • • • •,•' • • • • • ♦• • • . •. • 4 . . • • .w ♦ 4 a . • • g.R• r'a•7 • papa 2QS,.3t.: Ll. On J :nvtry 10, 1970, then United States Army, Corpa' of Enwittaixx *by it, o;.;t+-tatu !e •rei ; t.:.4u04 A drodIvkon trz::mit to 4ard 'a the bo►tt+ oi' is •r • :•tit �r 4' j �•. is t I) ;lad I ri: • t.wi,s :1si.►tClt i u ;,• }.I*tct , ;Ai tint, ti/*..i.A.riid t' i`.ttr Tate. On :inpt:eTbi'c 11, .i970, i yaLt(g1 St+iteSa (:west • ervI's ; , 9t!i•.30170: i i'•Litrll:; {ltritrtd K p:•j^.'.1i•s+'. Ica it! ('%i N:ssi et•ral.!• iwit:4474:• . Lei % ht a to is ii• rails. .113 `ri1 :3031441; far .1:44 • • • f,' .'St,r+t • •• 4 12s lila aforesaid pc.itrAta bait issued WithJilt adequate pubtis notitt and public hearin3 tequired by inter 014, 33 citin, 209.403, without the mixoniaeatat determlnALLea ar.4 asscsammt required bY NAPA, uttbaut th2 voitoultation with affected federal agencies required by LtittrAlLa thS•CA. 11-• at, set, without 4tAtt certification as to water quality oE. the necessary discharges rewired by Section 401 of 33 U.S.C.A. 11251, a Eat without compliance with Council on Environmental Quality guidelines • 4 . end federal regulations, and in particular without the preparation, s t dietribution and ftling of an Environmental ImpeCt Statement reqUired by. • • t. • 41 . .. Section 102(2)(C) of VEPA, 42 11.:S.C.A.. i4332(2)(C)• fiad thr*.APPLteillaw . . . . . . . federal reguLttions. See Zabel v.• Tabb, 43Q Ir42.ci 3.99 (5ttt Cir.: /970). . ... ; .. . . . • . . • Plaintiff has only recently became aware of the issuance of said• percaiu. .• Aced the pendency of cothers. Although. mere work has occurred under said • . permits the project itself is it a very early state wit): many changes still . being made iti the planaing stages. • • • • • 13. The granting and issuance of said permits was unreasonable, .arbitrary, capricious, in excess ofadministrative discretion and contrary to procedural and substantive law, and said permits are therefore null, void, and of no force and effect, and plaintiff has been deprived. of its • • •. • subitantive aud procedural rights by the issuance thereof.. •111272,FOU, plaintiff 4 •e.z.s• r.ds judgment eed prays: 1. That the aforesaid permits be declared null and void. 2. That the issuance of any future•perais be enjoined petutinx the preparation, distribution, itnd filing of en Environmental 'impact Statement 4ccore.jac. with. npAicable. tea and rnAlutions. . • • • 0 •• . . . . 3, That public netiei• •7nd boaring3 be contucted Vc3 tO0 013 envivonnnetst 44-Awtet vt th.rciv VS10 projcc.til .Accor441iCsvi.vh Apolicabtd 14%1444 • . • of • #�« itat future tcantsbitt t 4an trvrsts�► tt to the Invalid permits bt Ittaye�1 try sling the f ii tn4 eE 411 netteptablu tnvironmentat Ttpaot $tatemeoe. S. That the area be teemed to itr former condition if upon tho legally recui ed environmental review it is determined that rho permits should not Inoue. 6. That plaintiff recover its attornay'n fees and'toots of this . action. • 7 7;W ....?7,-.va// • • 1 4 • • 1 • anr+++ia pa.:i•A . `•.i I•t �•.• t. + ;• • s. 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Civa cm $.:!!,•' : ►s;; tvii Indy4s, ♦T :MIA tO).1!{T.a 1, s fr.7ila,:., stV. 4iIi:M.l jt i:t:' ::i�i 3 :ati!tt• tt:t:. � .$ guy t11nrrs'\'itii .t�IS1,lt•i 17g.., 4.1'r3::le-AI$ t'.t 5 t;ill.:Avit SS3'�4J. .!rrill/ t•A A.•••:tt'.":'i r*Ri~ l:o!;, , •: %!.:.J :f' ! :A%( itt). lii•.l s Y•.i 143 yrn7: 11t.l:+#..! •.::1;:1714V' • • ♦ • . •, • •. • • •• .r. te• .• • ♦0. • • la lted club complex. rest zung tts. he*rh r ns. medical seitei and even a litacarr. Tllere cci',1 be a marina for more than Rita yachts. a tcopica1 be, sw'iirminA roots and tennis muu. Ali c4it % ill tie 44 in a lush, r•Nturai ateneseter« of teaj ics' ;;s::xus, wncria:la ar•J Faun/re+rm. t%nil it wili e' 11::4:etc/I tty 4.4:a tsi ti•! i:tvit TN:1ilt.4'4;414 .•\ ;. ironic sec'•,:ri:,vs ':u;;trilltt{;14a%%•''lrs11. Su, if'tste is 1aA1ai: •t i.1.' a .t4•51s p#4v to #i.•e•..ty' a.;• •'.yt'i�tr! ;:t:•rr•i, ;;rill• ;!'!t bi..#1 US •i +it:.•• j: Si cm.* l:;it Lull tl:t Sai/•;i.sac XvF. . • ♦ 1.1%eC! .%:+mSi.;;404;i'. ti•,1 $.4I1 4i isCy, C.tvt:nut Grove, Etsrl►!s 1)1 1, • • • • • • • • =NIS 0, UNC, Plaintiff, VS* WITATai invent= calm sotinsatt DISTR/CT O FLIJRZIM CASS ?IQ. 7443.6Civ*J4 RONOgA8L1 AOWARD R. CALLAWAY, : Cites, et filo) DOEWIJAAtill. AMU OP DEFENDANTS- j. N • • The defendants, CITY NATION:iv, DANK, TRUSTEE; BURTON COLDBERO; SAUMOAT XBY, =AMATO; AMERICAN ADVISORY CORf PORATIoN, dibia SAILBOAT XEY DEVZLOPOS, file this, their answer to plaintiff's complaint and aays 1. Denied except it is admitted that plaintiff is a Florida tiaras and resident. 2. Admitted. 3. Admitted. 4. First sentence admitted. Second sentence denied except it is admitted that these defendants "propose to ,d.elves.lto;,.,. .• . • said Fair Isle". 3. Denied, ' " • • .rt. 6, boated except it is admitted that in the poet • defendant, did certain dredging and filling and bridge widenins under lawfully issued perate. 7. Denied. 4 8. it is admitted that some persons have protested the pronned developnent of Fair Islo and that there is Mips, ttori over pima pendinr, in the Third Iiistrtet Court of Appeal ot Florida. 1 sa.i 0•4443,,i, 4r; #11:114or 414.4,w, ImS. pw1BNPW GAN P4.4414 141•44soSitaaIs 1 • 1 f 9 And *0. Answering paragraphs 9 and 10, do ace nay that the taws ok the Vnited States ere the Mast evidence of the contents thereof. 11. Admitted. 11. Denied. 13. Denied. jet, 14. Furtheenswe�ring the eumplaiat, defendant* Sat...., that plaintiff was guilty of lathes in waiting until the +drsdg0:; and fill and bridge widening work had been completed before bringing the instant action. 15. : urther answering the =plaint, defendants say that plaintiffs cause should ba dismissed under the "comparative hardship„ ddoctrine. 16. rcrther answering the complaint, defendants uay that plaintiff lacks standing to attack the validity of some or all of the permits in question. 17. Further answering said complaint, defendants den each and every allegation not herein expressly admitted. SANS, ANDERS©N, .%LPEZ 6c PAST, P.A. lth Floor, Concord Building Maas Florida 33130 and ,:.. SAM DANIELS 14i4 duPoxt Building Maud., Florida 33131 • t Attorneys for Defendants Burton . Goldberg, et al. , By SAM DANIZLS ..1. MA* 14.404:16 , AIYA1ctii.Y Alf SWAM .wlwlir Os WWII* UI*S r • t MARY COT/VT that on this 24th say of Apri i, 1974, a true copy of the foregoing answer was mailed to D12t:l .S Q. KLi�ti, : wins, 3236 itmathla Street, Coconut Grove, Florida 331,33; C. tr. i;URi n it, t;:.C'4tins, Assistant United States Attorney, offiao of the United States Attorney, Atnsy,oy Wilding, Miami, Florida, .,..i 331321 and DAtNIEL R1CHAUSON, ESQUIRE, Department of Amy, ; i JarksoavtlIe District, Corps of Engineere,Office of Counsel, P. O. Box 4970, Jacksonville, ?lcrids 32201. .+ • • .3.. SAit OP•14I4103 NH tt4 Mtn C. HMG, k . ) OV1Tt *TAT= nit t TAtCT o uta $olltflrlu l Dt$TntCT OP MR3.D& Plaintiff, v. ) NO. 74•73*Ct74C HONORABLE HOWARD if. C,AUAWAY, et al .) Defendants. COMES ?40W the United States of America and for its Answer to the Complaint filed in the above styled cause against its agents gQ no_,�ia;, atates as follows! granted. 71,. ;, . bt; '1�1 1. This Court lacks jurisdiction over the subject matter, SRG b DF tz AR 1. the Complaint fails to state a elaim for which relief can be THIRD 1W1' 3:Bts E 1, Plaintiff's claim is barred by Caches, POUmmmm »E1'mst 1. Plaintiff has fail.od to exhaust his administrativo roasdtos. ?WU OXPENS £ • 1. Plaintiff has waived any rights which may havo accrued to him as related to the subject matter of this action. SIXTJT DEFENSE 1. The allegations of paragraph 1 of tho Complaint are admitted except that there is no knowledge as to Plaintiff's citizenship and residency; that it is dontad that Plaintiff is. or has been. a property owner to the immediate vicinity of. the "Pair Isis" project; that it is denied that 'Plaintiff and the surrounding area" has been damaged. 2. Admitted. 3. Admitted. 4. The United Stacey of America has no knowlodge: of the allegations of paragraph 4 of the Complaint. , • 3. Denied. 6. The United States of Atnr+rtea bag no knowledge of the allegations of paragraph 6 of the Complaint Insofar as hat wtll be required in the future and whether such future requtttiments W1.11 101 "Major federal action significantly affecting the quality of the human environment;" denim; that any pandini action is such t'major federal action," And admits that the past dredging and filling and badge widens ins required federal permits. 7. Dented. 8. The United States of America admits that f the totters and ono telegram ware received by it in protest of the project; has no knowledge as to any other "public protest" and denies that there is current litigation in the Florida Courts. the Third District Court of Appeal having decided adversely to the Plaintifftb position. 9, The United States of America admits that its laws state *that they state. 10. The United States of America admits that its lawful regulations provide what they provide. 11. The United States of America admits the allegations of paragraph 11 of the Complaint but denies that there are any permit applications pending before it other than one cable permit. 12, The United States of America has no knowledge as to what stage the project is in and denies the remaining allegations of para- graph 12 of the Complaint. 1.3. Denied, WHEREFORE. the United Status of America respectfully requests this 1Lonarable Court to dismiss the Complaint filed herein. ROD1RtT W. RUST UNLTD STATES ATTORNEY • Dys t . • • 4 • C. wr si.ix! C. punt* Assistant United States Attorney Attorneys far UQfcsndAnt 300 Atnsiuy ik•ildtnP. 14 U. C. Virsc Avenue' ff at, Nlor ids 33132 . 2 �. • 1 ttt fl1 lY Cann that o true copy of the foregoing Anwar wgo mailed to the following this a ,day of June, 1974: Cf3mt5 C. KING, f Q. 333E rmathta Street Coconut Crave, Florida 33133 SAff tiAfi1lL3, 030, SAh, AttDi SON, ALPtft rost, P.A. ith plow., Concord ftuiiding NUM, tlnrida 33130 and SAN bANIRLS, ESQ. 1414 Dupont Building Miami, Florida 33131 deo C, WESLiil` G. 9 lama a t).i.ti :.:.i 4. A 1 • , Plnint£ff R ':AORA Jt !il.► ARU H. CALL WAY, 314, Defenaantu. Z 1 THIS County's rcn +.wed 1 Untie MOTS ' • r rill; UI4t3:.R tit ;tttitta 70z rfrVtait t_,Ro, l"- a-.i r .,: - : ai�t=ei �j .: jai tilt, 2 7g 4ii ., i , �rtt , , VAtjt".41Wellk CAUSE is bore the Court on Metropolitan Dade tt motion to ittte vone. Upon consideration of the record i,s the cause, it is ORDERZD and ADJUDGED that: 1. Cctrop.litan Dada County's+irenewed motion t to intervene is denied. 2. Metropolitan Dade County is recognized by the Court as Mucus Curiae. Metropolitan Dade County is authorized to file briefs an any matter which shall cone before the Court for consideration and Metropolitan Dade County may be present through counsel at any hearing hereafter noticed. r DON1: and ORDERED at Miami, Southern D{ st:ciet of Florida, this day of •:� .° . 197 ..• ♦r.'trlR ;R 14:0:441.47';7!tllA �IRR'!#RAllt� t1.1I t'uci 1;1;,its*'j 0i- t ri.ct 474,0414 ";Office ' of County 4ttotiwy 11miii i.l O. ging R Oav i'.,1. Ili cYliiscduo t, 4! . ,; e t cl l'11.,t t DEt4N12 G. Mai +.'.t: a... ... _.;r�---al..._... A... • tttitrb glean 3Ltth'irt (!Itntrt Vett Mt: SOUTIttnl ==5"i ttcr OP MUM Plaintiff HONORABLWARD 11. Er fll t3Att WAY, ate.*tat Al., Defendants. endants. No. • i 4 73CZVm a TAKE NOTICE that the above -entitled arse has teen set for non -jury trio, 9:30 A.N. nn week of March 29th , ID 76 . sit 300 N.E. 1st: Ave.,, Mi am3., Florida, before the NCO. JOE E7 4, U. S. DIS 'RILX JUDGE. Data Pet). 25 , 10 76 • tty • JOSEPH • at .# Clerk. Stuart 4. O'Hare Deputy Clerk, • To DENNIS G. KING,ESQ. 3236 flnathla Street, Ct,caonut Grove, Fla. 33131 United States Attorney, 300 Ainsiey Building, Miami, Florida Stuart. Simms, 1 q., 10626 omit. county Ccxtrt•h u:a ., tiiauni, Florid.* 33130 Daniel fichardson, Esq., Dept. of the Auny, Jacksonville District Corps of Engineers, Office of Counsel, P.O. Box 4970, Jacksonvi11e,Pia. 32201 Thanes E. Lee,Jr., Esq., 66 West Flagler Street, Miami, Pla. 33130 Burton Young, Fog.* 17071 West Dixie Highway, North Miami Beach, Fla. 33160 • .st1i.1- 1 • $ MATS OP most/ton rx Etta,, PRANK + . CA 4t t4J R, .!t al VS. BA/LUOAT KTZ INC., cat ai. Dade County Circuit Court Cana No. 73-G449 Thin lawsuit was brought by Mr. & Mrs. Prank C. Gardner and David Deheny, residents of Coconut Grove and by several Coconut Grove homeowners and civic associations against the developer, contractor, City of Miami and the fee Owners of Sailboat Key. The Gardners' and Mr. Dohony are seeking injunctions against alleged violations of thy+ atoning ordinances of the City of Miami as they relate to the proposed development of Pair Isle. They also seek to have the building permits de- clared invalid. Both the Gardners' and Mr. boheny claim that their bayfront property which faces Fair Isle will be damaged by the proposed construction on Fair isle, and that their damage is different from the general public at large because of the proximity of their property to Fair Isle. In addition, the Gardners' and Mr. Doheny, together with the Associations, are suing on the theory that the proposed development of Fair Isle constitutes a public nuisance in that it would impede ingress and egress such as to cause traffic overflows, and would generally diminish the esthetics of the Coconut Grove area. The case is being defended vigorously on legal and equitable grounds. Presently, the matter is pending in the Circuit Court of Dade county before the Honorable Donald Stone. Two appeals have been taken to the Third District court of Appeal, resolving some questions preliminary to trial. No trial date has yet been set. JN Ei* 'AN9' VLI M) iNCf M 1'Aglia) i 1 i 1 9 114 VIM =CUM COUtt":' OP TIME 11TR JUOZC7At, C1EteUtT Its AND nett COUNT?, nortIDA at s�AL JtH 7 DICTION D1vzgtom MU 140, 73-6449 STATE OP PLORZDA EX REL. PPANR C. GARDNER and PRANCES G. GARDNER; TROPICAL AUDUriON SOCt1TY, INC.; TIGERTA7L ASSOC/ATI0N. INC.; tYSHORE HOM1OWNERS• ASSOCZATZON, INC.; COCONUT GROVE CIVIC CLUB, and ) ) ) ) ) PRANK C. GARDNER and PRANCES G. GARDNER, and DAVID A. DOi1ENY, ) Plaintiffs, VA. . ) SAILBOAT KEY, INC. and AMERICAN ) ADVISORY CORPORATION, d/b/a Sailboat Key Developers; ) v * �RUC .N COMPANY, INC.; CITY OE ri=A:•1I LORIDA; ) _ boMINIUM ASSOCIA- : tion, inc., a corporation not for ) profit; SAILBOAT KEY MANAGEMENT, . INC.; THE CLUB ON SAILBOAT KEY, ) 2NC. ; JOHN C. SPENCER, VIRG/N/A 0. BEVER _ ind WILLIPM A. VAN NOBT-- ) WICK, JR., as 'trustees for FIDELITY MORTGAGE INVESTORS, ) a Massachusetts Business Trust; CABOT, CABOT & FORBES LAND TRUST, ) a Massachusetts Business Trust; and HOSPITAL MORTGAGE GROUP, ) a Massachusetts Business Trust, ) Defendants. ) FOURTH AMENDED COMPLAINT • ' COUNT I A. Jurisdiction n t . u 1. The jurisdiction of this action is vested in this Court pursuant to Chapter 66, Florida Statutes, and its general equity jurisdiction under the Constitution of the State of Florida. ,4 3. Plaintiffs are in doubt AA to their rights under the Statutes and common taw of Florida and under tha cowrarchrusive Zoning Ordinance of the City of Wand and *therefore ore have commenced this: action seeking a 404°,741-nation • a ! ! • • , dt th it right9, rind Li that Court dot+erminet; their rights shall have been violated, Plnintitrn s,rt±k injunctive and other tuppinmontal relict with convect thereto. Therefore, this in an actions (a) for n declaratory judgment (f) ,lthat Defendant ;,t '' , City of Miami, plorida, in allowing, and they remaining Defendants in causing to be commenced, ' commencing, and continuing construction of a building project on sovrsral unplatted parcels of • • property located on Pair tale in the City of Miami, rlorida (the "building project"), are doing so in clear violation of the Comprehensive Zoning .Ordinance of the City of Miami and the statutory and common law of Florida; (ii) that if permitted to go forward the building project would constitute a public nuisance; (iii) that no valid permit or other authorization and for such construction was issued; (b) for injunctive relief with respect to the continuation of such construction; and (c) for a mandatory injunction requiring Defen- dants to restore the property involved to its condition as of the date of commencement of•this action. B. Parties 3. 'Plaintiffs Frank C. Gardner and Frances G. Gardner ("Gardner") are and have been for a number of years citizens, residents, taxpayers and owners of real property in Miami, Florida. They own and resido in a home at 1700'South • Aayshoro Lan© directly abutting the building projoct across the wsstorway. 11PlaintiCls Gardner have boon and will ba specially damaged by the illegal actions of Defendants heroin complainod of, as MOM fully spot fortis in Paragraphs 10-23. . 4. •A \*s ' PlaisstttC David A. Wholly Mahony") L. and 1 • • • , • - • r has been for a natter or years a eitizen re lent, Died tnxpayae and an owner- of real.propetty in Mj. rii, Florida. Ha owns and resides in a residunec at 1770 South nayahora Lana directly abutting the building project across the waterway Eiaintite Doheny has boon and will bo spaciaily damaged by the illegal actions of Dafcndants heroin complained of, as morn fully seat 'for in Paragraphs 10-23. 40 S. Plaintiff Sayshore Homeowners Association, Inc. ("layshore Association") is a Florida corporation not for profit, having its principal office in Miami, Florida. This Association was organized for tho purpose of promoting the welfare of residontse of the community in the immediate vicinity of South fayshore Drive and specifically Fair Isle and to improve zoning and to determine whether zoning violations have occurred. Its membership principally consists of home- owners, citizens and taxpayers of'the City of Miami, Florida living within the South Thayshore Drive area from Mercy hospital. .to Rock man Heights, in tho area immediately around and adjacent' to t t property and its approachways known as Fair Isle. 1410 6. Plaintiff Tigertail Association, Inc. ("Tigertail 'Association") is a Florida corporation.not:for.profit having its principal office in tiiami, Florida. Plaintiff Tigertail Association's principal purpose is to preserve and protect the single-family residential neighborhood in North Coconut Grove. The membership of the Tigertail Association, Inc. is comprised of homeowners, citizens and taxpayers of the City of Miami, Florida living in and around the Northeast Coconut Grove area of tho City of Miami, Florida and more particularly in a area around and adjacent to Fair Isle and its approachways. 10),'7. Plaintiff Tropical Audubon Soaioty ("Audubon") is A Florida corporation not for profit, having its principal office in Miami, Florida. Plaintiff Audubon is an organita- tion created for and 4cdi.cat:cd to the i'urpoae of activoly protecting the duality oC life for All ronfdontn of Dada County. P1:iintiff Audubon in concerned with countruct:ion 4 4 . f . le ♦ 1 VVsich'will have a regionsWpm: n ottn r activities will mum irreparable harm to the environment or wh& h may have a detrimental effect upon, for example, the adeaquae=y of roads, power sourceu, 'sewage treatment facilities, and fresh water sources. /14 C. Plaintiff Coconut Grove Civic Club ("Civic Club") Ls an association of property owners, taxpayers, residents and citizens of Coconut Grove. Its purposes include the prote-� on of the unique life style and environment of he Co nut Grove community. 9. Defendants Sailboat Key Incorporated and American or'y Corporation, d/b/a Sailboat Key Developers (collectively "Defendant Developers") are Florida corporations having their :principal offices in Miami, Florida, These Defendants have ;heretofore engaged and are currently asserting they have the right to engage in foundation construction of a complex of buildings constituting the building project upon several unplatted parcels of property, all lying within that property legally described as= Tract "A", Revised Plat of Fair Isle, ,•r according to the Plat thereof, recorded '• in Plat Book 34, page 70, of the Public Records of Dade County, Florida (herein- after "Fair Isle"). The building project includes four highrise towers -- two being proposed to be 36-story buildings and two being proposed to be 40-story buildings -- to contain condominium and hotel units, • wi.th capacity for approximately 3,000 residents, restaurants, bars, social clubs, night clubs and a.taarina for utilization by such 3,000 residents and other thousands of non-residents, all on a 20-acre oandfill connected to the mainland only by a short narrow two-lane bridge. 7P3athtifce believe and there- fore allege that the building project is being constructed and is planned to be constructed in violation of the Comprehensive toning Code for the City of Miami, with Defendant Developers' full knowlodge of such iliegalit. +. ' 10. Defendants Arkin Construction Company, Inc. • 11 • P • • Vareinaftcr retorts d to an "Arkin") it general contractor Of the building prcekiet(a`nd has. procured the issuance of 4. building permits from Defendant City of Miami to construct e building project which building permits Plaintiff l !.h q ava and therefore seek this Court to declare were unlaw ully issued in violation of the Comprehensive Zoning Ordinance (the "Zoning Ordinance") for the City of Miami, and LE such permits are currently in effect are being maintained in affect in violation f he Zoning Code. p1.1. Defendant Sailboat Key Condominium Association, Inc., ("Condominium Association") a corporation not for profit was organized and exists under the laws of Florida and, on information and belief claims an interest in 'Fair Isle" by • virtue of.a Declaration of Condominium for Sailboat Key dated clay 16, 1973. Defendant Sailboat Key Management, Inc. ("Management") is a corporation organized and existing under the laws of Florida and, on infrsrrnation and belief, claims an interest: in "Fair Isle". Defendant The Club on Sailboat Key, Inc. ("The Club") is a corporation organized and existing under the laws f Florida and, on information and belief, claims an in rest in "Fair Isle". Defendants Sailboat Key Incorporated and Americ i Advisory Corporation, d/b/a Sailboat Key Developers, Pr and -Defendant Arkin, as well as Defendants Condominium Association, Management and The Club, which are controlled by Defendants Sailboat Key Incorporated and American Advisory • Corporation, are hereinafter referred to as "Defendant Developers". 13. ' John C. Spencer, Virginia Q. Beverly and William 41, Van Nortwick, Jr. are Trustees of Fidelity mortgage Investors, ("fidelity") a business trust organized and existing under . ' r ;., thelaws of the State of Massachusetts. .lr'14. Cabot, Cabot & Forbes land Trust ("CCP") is a rpr business trust organized and existing under the laws of the Flaw of Mauuachus.cti:tct, •• 0 • • 14. 161 i • 40 '(It 13, Itonpitet Mortgage Croup t"ttt40") is o business unt orgstntett+ct and existing lender the laws of the 'rage of Mantachunetta. Drtcndantn Fidelity, CCr anct 'Au Are heroinattor referred to as "Defendant benders". `,.•. I,6. Defendant Lenders have pitrchasead Fa#.r tote at Li foreci.onure nale,and have announced their intention to build under the illegally insued permits procured by Defendant Arkin,, and Defendant 0e1,e10ers through the..connivance of L-:fondant City of Miami and As. agents and employee$. tneofat as Defendant Lenders attempt to commence construction on such a basis they ll be treated herein as Defendant Developers. 17.(Dofendant City of Miami, Florida is a municipal through its agents and cor�•ratfon,which has, g 9 employees, issued the building permits to Developers and otherwise permitted so)construction of the Fair Isle Development to commence. (Plaintiffs believe and seek a declaration by this Court that the issuance of these permits is in clear violation of the Comprehensive Zoning Ordinance for the City of Miami, Florida. Special Damages of Plaintiffs Gardner and Dohen 18. In addition to all damages suffered by the Plain- tiffs Gardner and Doheny as citizens, residents, taxpayers and homeowners and members of the general public of the City of Miami and of Dade County, Florida, by reason of the actions of Defendants heroin complained of which Plaintiffs believe to be unlawful, the Plaintiffs ardner and Doheny have also suffered special damages as the re ul.t of t e actions of Defendants, as set forth below. 10 19. Plai Liffa Gardner and Doheny are the owners of and reside in single-family residences which abut the building 0 The "association plaint if fu' , Audubon, Days horn, Tigertai'. and Civic Club, were hold not to have special damages by this Court and t'.biu holding was affirmed by the Third District in its decisions in thin cave 295 t:ts.24 650, 306 Sa.2d 616.. Tleo aanoaiat:ion lainti.ffs Aro )artt' t only with ren cet: o the count aj.l ed ssc a publt flu1i, 1i1�;;. • t11 1 ..G» • • 1 a • 1, / ft, 4 f t M • t • • � f $ $ j rt directly across the r►a torway, goch s.Miro been Owned by than for many ye/trio)the highs ine tortowura of the bui,ldanq project a ro tsr r+n t ruet:ed en planned, such tower:: n will b located directly in front of 06 Gardner end Doherty hones and will destroy their present unique waterfront view which in of special meaning and enjoyment to them and eliminate the prevailing brasses which their7 20. 2n addition, the 10-1/2 foot finished grade and seawall which Developers plan to construct in an effort to avoid application of the Zoning Coda (see paragraphs 28-36) will be directly in front of the homes of plaintiffs Gardner and Doheny and in case of a hurricane • the 10-1/2 foot seawall %. could delay recession of the water and would aggravate the • � h isk of flooding of the home' of such Plaintiffs. Plaintiffs Gardner and Doheny will thus suffer immediate and irreparable injury not common to any other residents of Miami other than :..- owners of adjacent waterfront homes because of the immediate pr :affinity of. their home to the building project. \o////// 21. In addition, Plaintiffs Gardner and Doheny will suffer additional immediate and irreparable injury not common to other residents of Miami, which injury consists of the creation of massive traffic, glaring commercial night lights and noise so as to destroy the residential privacy which such Plaintiffs now and in the past have enjoyed, Defendant Developers' Plan construction of bars, nightclubs and other late night centers of entertainment, as well as the,two 40-story and two • 36-story highrise towers. This construction (which Plaintiffs believe is also in violation of tho Zoning Code) will cause groat distress and direct harm to these Plaintiffs by causing: • (L) an excessive amount of light during the late sight hours, caused by an island being lit up, to a height of 40 stories and four buildings across; and (it) an ctcossnivo •unousskof noise, caused by is continual flew of motor vehit:Ion to and from Pair Isle, the entertainment itself, assd cho con9reaat iou of It large amber of People in ouch a small area. 1 • • • t • .• tt • e • !• i a t♦ ♦ ♦ s' ri, 21A. IV rrn n et all the terelict tht ht )dA I . alita project•, it completed In the man'nor herein plgined of, Will nubstanti.aily diminish the value and desirability or the home of Plaintiffs Gardner and Doheny an single-family reoidontial property. ♦ i damages of Plaintiffs Gardner and Whiny are different in kind from those duffered.by other residents and homeowners in the City of Miami, and if the building project is permitted to proceed, Plaintiffs Gardner and Doheny will be deprived of their property without due process of law and equal . protection of the law in violation of their rights guaranteed by the Co r titution of the State of Florida and the United States. 22. In addition, ingress and egress to the residences • of Plaintiffs Gardner and Doheny will be virtually eliminated' by the traffic flow which will be generated on Pair Isle Street by the Building project, the only ingress and egress to such residences being Pair Isle Street, a narrow street barely wide enough for two cars to pass. 'Specifically, Plaintiffs • believe that Defendant Developers anticipate placing 3.000 new residents in.the building project on 20 acres (approximately 1/32 square mile) in an area (Census Tract 68) where the density per square mile as of 1970 was only 3.776. This population increase will result in a precipitous increase in population density of • approximately 30 times the present population density. The correspondingly increased flow of motor vehicles to and from Pair Islo must pass down Pair Isle Street between the bridge to Fair Isle and South Bayshore Drive. The Fair Isle Development will thus substantially limit ingress and egress to the resi- dences owned by Plaintiffs Gardner and Doheny. p 23. In sum Plaintiffs Gardner and Doheny have been anwill be apecially damaged in the fallowing ways* • 0 i r 1 . r (a) They will be denied thni.r right or acmes to the streets and to re.a .,n► ble and convenient ingress and egrenn to their home►, and to Mercy Hospital, which ingress ;1t►t1 a reun Will be tubttatttial:ly interfered with and effectually destroyed by. the. tremendous increase in local traffic, all of which traffic must fi.tsw through the bottleneck known as South Wilhelm Drive!, which in the primary route connecting the City of Miami, with Coconut Grow Village and South Dade County; (b) The excessive number of water and land motor vehicles will result -in substantially increased noxious emissions injurious to the • health of Plaintiffs and guests and relatives at their homes; (c) The property values of their residences will necessarily declines, reflecting the decrease in the quality of life and of safety caused by the increase in night lights, noise, noxious air pollution, traffic, garbage and refuse, and population, and the inability of • the City of Miami to provide adequate fire protection, water pressure, fresh water, sewage treatment and other essential services,' all of which Plaintiffs believe will result from the proposed building project. (d) Their unique waterfront view will be destroyed, the prevailing breezes which cool their homes will be eliminated, and the danger of flooding and other damage resulting from hurricanes will be increased. COUNT ONE - VIOLATION OF THE COMPREHENSIVE ZONING ORDINANCE OF THE CITY OP MIAMI 24. Defendants Developers and Defendant Arkin have advised the City of Miami that they intend to construct at least the following structures in the building project, such project to be constructed on several unpaltted parcels located or Fair Isles four highrise condominium towers -- two of 36 floors and two of 40 floors designed to house approximately 3,000 persons; aclub facility and shop for utilization by such residents and by others; utility buiidings; a center entrance building; pool facilities; cooling towers; passageways, :;hops; 4 recreational facility; and two parking garages. The building project is purported to be constructed pursuant to Article X (High Density Multiple - R-5 District) of the Zoning Code. 4 •9- 4 i 1 • • 1 I . 1 ' a • qv 111� 1S 1i 1 • Newever, Plaintii'ts Virus that in fact the project, it Constructed in accordahce with the Developers' present plans, Will be in violation of virtually all requirements of that Article, but are in doubt with respect thereto and their righte by reason thereof, and are therefore seeking a declaratory judgment that such construction is in violation of the Zoning Code, and a determination of their rights arising from the violations which Plaintiffs believe have occurred, which violations are summarized as follows: ' (a) ''The building ro. ce1 is not a uni.... a building ro:.oct. The building plans submitted by Defendant Developers to Defendant City purport to show that‘the building project will proceed as a unitary project. Plaintiffs believe that in fact, as more fully set forth in paragraphs 38-40 hereof, the building project is not a unitary project, and therefore no building permits could lawfully be issued with respect to' such project. • (b) Assuming arguendo the building project is a unitary building project, (i) the project violates ' prrovisions of Article X of the Zoning Code and (it) constitutes an illegal variance. (i) Assuming, 9. • hrguendo, that Defendant Developers' building project is a unitary project, Plaintiffs believe that construction of the building project in accordance with the building plans submitted by Defendant Developers to Defendant: City would be in violation of the principal requirements of Article X of the Zoning Code, including section 6 (Lot Coverage) and Section 8 (Usable Open Space) thereof, as well . as other provisions of the Zoning Code, as more fully net forth in paragraph below. (ii) Plaintiff Aluo bal ievun that the •act:ion of Defendant City in Is€:uing to Defe sd;tttt. » vetopers and Defendant Arkin ..i p.. • • • 7 1 •building n to e t tI uet the Pair Lulu OuVelopment Constitutes an illegal variance from the provisions of the toning Code, which varienees, Plaintiffs belie, wore not granted in the manner rrqulred by law and thus are illegal acts of Defendant City and void. (o) if the bu i d„� pree .eet i"e not a unitary bu uildim construction ©n each parcel must !WIZ with the Winch C de and tie bu3.ldinl project font; to do. if, as'Plaint ffs believe, the building project is not a unitary project, then construction on each parcel must comply with the Zoning Code. instead, Plaintiffs believe that construction on each such parcel in accordance . with the building plans submitted by Defendant Developers to Defendant City would be, with respect to each such parcel, in violation of the principal requirements of Article X of the Zoning Code, (Ploor Area Ratio), Section 6 (Lot Coverage) and Section 8 (Usuable Open Space), as well as other provisions of the Zoning Code, as more fully set 1 forth in paragraphs 41, 42 and 43.hereof. 25. Plaintiffs believe but are in doubt with respect thereto - and therefore seek a determination by this Court that the building project cannot be deemed a unitary development because, without authority and thus in violation of law, Defendant Developers have separated ownership of Fair Isle (the legal description of which is.sot forth in,paragraph 8 hereof) into five unplatted parcels. These unplatted parcels are visually shown on Exhibits 1-4, which are maps prepared by Schwebke-Shis3:in & Associates, Inc., Registered Land ' surveyors; employed by Defendant Developers. The legal descriptions or four of those five unplatted parcels, likewise prepared by. Sehyoe-Shiskin I Associates, inc., are set forth in Exhibit 5. . ►. 1 i 1 • •1 1 �# (a) The limit of Limns unplatted parcels in shown as a ohaded portion at Exhibit 11 Thin parcel in refarrod to herein an Unplatted Parcel i marred an Tract "A" an tho original Map prepared by Sehwebke-Shinkin & Annociaten, Inc. (although it in only r: portion of the platted Tract "A", the Legal dancription of which in teat forth in paragraph 9). As shown on Exhibit 3, Unplatted Parcel T. contains "Phauea 2" of tho building project: one 36-otory and one 40-etory highrino condominium tower, and attendant parking facilities, which are 1the.subject of Building Permit No. 73-2984 of the City of sr#Miami described in paragraph 31. Plaintiffs believe and t,+i� therefore assort that by virtue of a Declaration of Condominium ei . for Sailboat t:ey Condominium dated May 16, 1973 under Chapter 711, Florida Statutes, title to Unplatted Darnel i consisting of 8.5 acres more or less, is in Sailboat Key Condominium ASsoo a 44 Incorporated, a Florida corporation. • tb) The second of these unplatted parcels is shown as a shaded portion of Exhibit 1 and as "Future Development" on Exhibit 2. This parcel is referred to herein as Unplatted Parcel 21. Unplatted Parcel II is marked as "(9.43)" on Exhibit 1 on the original map prepared by Schwebke-Shiskin . & Associates, Inc. Plaintiffs believe that Unplatted Parcel II, which constitutes - Phase II of the building project, is to contain two highrise condominium towers and attendant parking facilities, which are the subject of Building Permit Mo. 73•-2985 of the City of Miami described in paragraph 31. Plaintiffs believe and therefore assert that title to Unplatted.Parcel II will become vested in a condominium association through a dedication to condominium ownership in they same or a siutilir planner to that: specified in subparagraph (a). kil (c) The third of these unplatted parcels is shown as ono of the two shaded portions of Exhibit 3 and marked "Lease I" on web Uxhi.btt.. This: parcel La referred to herein ea Unplatted .42» • f • • • • • • L, • 0 . • • 9 • A. Parcel i11. Unplatted parcel 111 ib one of two pa r in shoes on Dxhibit 3, the title and uwnership of which hau been retained by Defendant Developers. Plaintiffs believe and therefore aseert that certain recreational facilities will be constructed on Unplatted Parcel HI by Defendant Developers which are the subject of a certain 99-year non-exclusive leans dated May 1.6, 1973, from Defendant City National. Dank, Truato , acting for Developers, to Sailboat Key Condominium Association, incorporated. 'Plaintiffs believe that the rentals under this lease, as well as any rentals received by Defendant Developers for Leasing such facilities to other persons, belong exclusively to Defendant Developers and that Defendant Developep intend to make a profit on such leases. td) The fourth of these Unplatted parcels is shown as one of the two shaded portions of Exhibit 3 and marked "Lease I1" on such Exhibit. This parcel is referred to herein as Unplatted Parcel IV. Unplatted Parcel IV is the second of two parcels shown on Exhibit 3, as to which Plaintiffs believe that title and ownership has been retained by Developers. Unplatted Parcel IV is also subject to the lease to Sailboat ley Condominium Association, Incorporated, describe in subparagraph (c). (e) The fifth of these unplatted parcels is shown on Exhibit 4. This parcel is referred to herein as Unplatted Parcel V. Plaintiffs believe that title.and ownership of this parcel will either be retained by Defendant Developers or conveyed to a third party. Plaintiffs believe that Defendant Developers plan to build "The Club on Sailboat Rcy" on this parcel for use by purchasers of condominium units on Unplatted Parcel T and Unplatted Parcel. II and such other number of persons Pas Defendant Developers may impose for such une. As noted in Exhibit 4, certain "air rights" are reserved over Unplatted Parcel T for the use of "The Club on Sailboat Key". •. 1 i V 26. Plaintiffs believe and thrrofcsre asne.rt that Subdivision of Pair isle into thu foregoing five uttpL4 tted parcels his net been accomplished in accordance with Chapter 177, Florida Statuten, nor in accordance_ with the gaming Code and aeek-a determination of their rights by reason thereof. )9 27. Plaintiffs believe, but aro in doubt, with respect thereto, that construction of the building project on the foregoing Unplatted Parcels is in violation of the Zoning Co to as follows: (a) Phase 1 and Phase 12, to ba constructed on Unplatted Parcels 2 and 11 will violate the Floor • A ea Ratio, Lot Coverage and Usable Open Space /eczttirexncnts of the Zoning Code; (b) Unplatted Parcels 111, 1V end V are to be used in a manner which does not comply with use regulations permitted by Article X of the Zoning Code, all as more folly described in paragraphs 4i, 42 and 43. • Plaintiffs aro unsure of their rights in the face of what they believe to be violation of the Zoning Code and are therefore seeking a determination of their rights if this Court shall • determine that construction of the building project is in violation of the Zoning Code as Plaintiffs believe and therefore assert. Violation of the Zoning Code if the Building Project is Considered to be a Unitar navQlc� meat. 4f+1 28. Plaint:iffa believe that the building project is in44 violation of the Zoning Code whether or not it is a unitary development;. Oilaint:iffu believe that Defendants • contend that the building project is a unitary development. AQuuming thin to be true, P1aintifin hollow tea And Moreiora anver•t that the building project is in violation of Article X of the Zoning Code, particularly Sect:Lout: G and 8 thereof, an w eU rm other proviui.Qiss of the Code. Plaintiffs believe 14- • . . 111 • 1 1 •;` •. • • that the parking ntrncturea to be constrticted to an altrvntion of 22-1/2 feet above t*en level will bo nubstanti nily more than 12 feet above grade and gust be considered in calculating lot coverage under Article X and that the height of the other structures in the building project have been calculated in violation of the Zoning Codca so ae to miscalculate the • actual lot coverage of the building project. If the atructures are so properly considered, the maximum lot coverage permitted Le substantially exceeded. Plaintiffs also believe that the height of the parking structures is violative of,Section 19(7), Article ry of the Code, since such height exceeds 12 feat above grade and .that when all parking structures are considered together with the other structures within the building project the provisions of Section 19(7), Article /V, as to lot coverage are also substantially exceeded. Defendant Developers first sought and received variances from the provisions of the Zoning Code to build the parking structures, but, after revocation of such variances, Defendant Developers are proceeding with the construction without benefit of variances. Plaintiffs have set forth in paragraphs 29-36, the scheme under which they understand Defendants are attempting to do indirectly what they cannot do -directly. Plaintiffs believe and therefore assert that this scheme, as well as other matters described. it paragraphs 29-36, violate the Zoning Code but are in doubt thereto with respect to their rights and are therefore seeking a declaration by this Court • as to such violation and a determination of their rights wi-h respect thereto. ;1 29. In purported compliance with the terms of Ovation 6, Article X of the Zoning Code, with tecspect to lot covcragc, and in order to secure the building permits described in paragraph 34, Defendant Developers submitted to the building department of Defendant City o1 Miami the lot coverage compliance figures shown on Exhibit G at tachod hereto. On the basin of the prior conduct of Defendant a 1 0 a 1 • • 4 • • Developers described hereafter in paragraph§ 30 and 32. Plaintitts believe and therefor assert that such figura': were computed in knowing and wilful violation of the lot coverage requirements of the Pioning Code. Since permissible lot coverage relaten to the height of buildings from the finished grade of a lot, Plaititiffs believe that Defendant Developers proposed to purportedly comply with the Lot coverage requirements by the following scheme: (i) Creating an original finished grade on Pair Xsle; (ii) Constructing the building project; (iii) Then creating a new fictitious finished • grade at an elevation substantially above the finished grade of Pair /sic between and around the area designated for structures constituting the building project; and • (iv) Measuring the height of the structures comprising the building project from the fictitious and artificial finished grade created by the Developers substantially above the original finished grade in an effort to avoid the "lot coverage", "usuable open space" and other requirements of the zoning "Code. Plaintiffs believe and therefore assert that Defendant Developers principally seek, by application of this scheme, to exclude the parking structures to be built from being considered in determining the maximum lot coverage. Plaintiffs believe and therefore assert that Developers • proposed to surround the parking structures (as woli as all other structures in the building project) by a fictitious grade level and to improperly measure the height of such structures (and all other structures) from the.fictitious and 40 ••• . 4 0 4 • • • • . • • ,• f 11 1 + 1 to 1 X 1 1 1 1 Artificial grade level no an to ace ompii.rth an ills ei deduction from the height of .all structures c:omprining the building project. 8inco maximum lot coverage is determined in ralation to Lha height of the, st:ruetures placed an the lot,• plaintiffs believe thin illegal deduction is an attempt unlawfully to exceed the coverage which would otherwise be permissible if the height of the structures were validly calculated, without application of the fictitious grade level described hereins Plaintiffs believe and therefore assert that if properly' computed in accordance with the Zoning Code, the actual lot •coveraga of the building'project must include the coverage of the parking structures to be constructed to an elevation of 22-1/2 feet above sea level, and, so computed, the actual lot coverage is substantially in excess of the maximum lot .• coverage allowed by the Zoning Code. 9/(30. Plaintiffs believe and therefore assert that the violations of the Zoning Code specified have occurred with full knowledge of Defendant Developers and Defendant Arkin and with full knowledge and complicity of employees of Defendant City. Recognizing that the building•project when originally conceived (which then provided for only two • towers, rather than the four towers presently contemplated) would violate the lot coverage requirements of Section 6, Article X of the Zoning Code, Defendant Developers requested a variance so as to rally•exceed the lot coverage requirements of this Section. OnDecember 10, .1970, the City Commission of Defendant City, by Resolution No. 42062, granted the requested variance to permit lot coverage of 60t, rather than 35t as permitted by the Zoning Coda. This variance, and t:hu permissible excess lot coverage derived therefrom, is no longer in effect because: 4i) .Tlut actual lot; coverage of Pair Isle Development is in excess of 60%f 4 447 4 4 4 4 4 14 t L) Tho vari.lnao expired by 3.tn term on June 10, 1971, never having been lawfully extended; (ILL) Men if lawfully extended, the Variances expired on June 10, 1972, no construction having been commenced by that date; and' (iv) The variance WAS specifically revoked on July 20, 1973, as is shown ineparagraph 33 bolow. 31. Plaintiffs believe that the action of Defendant eve opers in seeking, and of Defendant City in granting, the variances described in paragraph 40 shows that such Defendants knew that the terms of Section 6, Article X of the Zoning Code with respect to lot coverage, would be violated • • by the building project. Despite the facts of violation specified in this paragraph 28, and the knowledge exhibited in subparagraphs,29 and 30, on March 22, 1973, Defendant City issued to Defendant Arkin, for Defendant Developers, Building Permit Nos. 73-2984 and 73-2985. Plaintiffs believe and therefore assert that each of these Permits was issued in violation of the Zoning Code. Plaintiffs believe and therefore assert that the violations of the Zoning Code . specified in this paragraph occurred with full knowledge of Defendant Developers and Defendant Arkin and with full knowledge and complicity of Defendant City and certain of its employes. . 32. Plaintiffs believe and therefore assort that • Dafendiint Devel opers j o )o o 1 o build, as part of the . building project, parking structures (topped by a "recreational deck") of is height in excess of the 12 foot permitted by the lassLn!! Code, ►hi.ch structures will cause the building project to violate the Zoning Cocky by reason of the resultant excessive lot.. coverage. .Plai.tsttffe bet ova and thoroforo Assort that, . • . • • • 1 , • ation 19 (7)(0), httLt lc IV of the t ni.nyi Code permits only parking cel:ructures which are 12 feet or loss in height to bo considered on "acctassory structures", Plaintiffs also baliovo and therefore assort that theca parking structures and the remaining parking structures, within the building project, when considered together with the other structures within the building project constitute lot coverage substantially in excess of that permitted try Section 19(7)(a), Article IV of the Zoning Code, 4 1. Recognizing that a variance was required to construct parking .structures to a height in excess of the Building Code, Defendant Developers. requested and on December 10, 1970, received, a variance from the City Commission of Defendant City of Miami to construct such structures. Thi's variance, by its terms, expired on June 10, 1971, nless construction thereunder was commenced prior to that date or an extension was granted.CNo construction was commenced prior to that date and, Plaintiffs believe and therefore assert that no valid extension was granted. Therefore, Plaintiffs believe and therefore assert such variance expired in accordance' with its terms. 2. Purported extensions of this variance were granted by Defendant City of Miami, but Plaintiffs believe and therefore assert that such extensions were not granted in accordance with Section 4, Article XXXI of the Zoning Code and woke, therefore, illegal, void and of no effect:. . • 3.. In any caw, oven undor the latent of those cxtcnnionn, ouch variance wan extended only to 4duau 10, 1972. Since c onnt.rucl:ton did not commence mence purnwmt co a building permit Lunuod prier to that date, Vl-aint.Lffn believe and therefore annort that finch t.ccn : iuu in any cane expired on June 10. 1972. • 1, 1 1 a a a • 4. Finally, na act forth in parogreish 33, Plaintiffs believe and therefore assert that such 9 . .1tarianco was revoked by notion of that City lLonion of Defendant City of Miami and wag thus terminated. 5. Plaintiffs believe and therefore assert that tho violations of the Zoning Code specified in this paragraph 32 have occurred with full knowledge of Defendant Developers and Defendant A in and with full knowledge and complicity of efendant City and certain of its employees. 33. On July 20, 1972, finding that Defendant Deve],opers' plans had been substantially altered between the time they were submitted for a variance and the time they were submitted for a building permit by the decision of Defendant Developers to increase the building protect from two 33-story highrisa condominium towers to four.highriso condominium towers w w two 36-story and two 40-story structures the City Commission of Defendant City of Miami adopted Resolution No. 72-425, revoking the variances described herein in paragraphs 30 and 32. As a result of such resolution, officials of Defendant City directed Defendant Developers to process a new application for variance and in the interim, tit cease construction or (if) continue foundation construction, with the understanding that final building permits would be issued only when plans were filed with the building Department of City wh 'ch would be in complete conformity with all applicaa building and zoning ordinances. • 34. Plaintiffs believe and therefore assert that the action of Defendant Developers in seeking and of Defendant City in granting Lim variance for tho parking structures described heroin clearly shown that such Defendants know that: construction of t:hcs ps•opc" cd parking structures violates tho height and lot coverage hi.euit4at ions of Section 19(7), Art ioto )V of the %oning Coda.' Despite the fact And knowledge • • 4-2p- of - ructi violation, and dr rtpite the fa and knowiedgo that Without such parking structures the building project would violate this parking upetce requirements of Article MIL of U a Toning Coat, Defendant City issued to Defendant Arkin, for Defendant Developers, the building permits described in paragraph 31 authorising the construction.of such parking garages. Plaintiffs believe and therefore assert that such actions constitute a violation of the Zoning Code but are in doubt as to their. rights. Plaintiffs are therefore seeking a declaration by this Court as to the legality of such • action and, if such action shall be declared to be illegal, a determination of the validity of such building permits issued by Defendant City'and a determination of Plaintiffs' • rights. 35. Plaintiffs believe and therefore assert that rather than meeting either of the alternatives stated in paragraph 33 which had been given them by Defendant City, Defendant Developers, with the complicity of the Building Department of Defendant City asserted they would increase the height of the seawall around Fair Isle to a 10-1/2 foot fictitious finished grade so as to create the fictitious and artificial finished grade described in paragraph 29, thus purportedly eliminating the need for variances. Plaintiffs do not believe the increase in the height of the seawall and of the fictitious finished,grade is a legal means of avoiding the specific lot coverage requirements of the Code. Qlaintiffs • believe and therefore assert that such action is a violation of the purpose, intent and language of the Zoning Code and an attempt by Defendant Developers to do indirectly that, which theyhave been prevented from doing directly. Plaintiffs believe that to allow Defendant Developers to so elevate the finished grade makes a ahasn and mockery of the Coda, the provisions of which have been relied on by PIaint:iffa Gardner and Ualrcny. Plaintiffs believe that Defendant Developers, 1 9 • 1 • 4 • by neck ttg the origi.tna variancta, and Dufentdant: City in granting them, havu tihawh full knowledge of the nets,l requirements of the Zoning Code, and cannot now violate such rcquiremet, 36. Plaintiffs further believe and therefore assert that the action of Defendant City of Miami in issuing to Defendant Arkin, for Defendant Developers, Building Permits Nos. 73-2984 and.7372985 constitutes an attempt by Defendant City without compliance with the Zoning Code, to grant numerous variances from the provisions of the Zoning Code, and, in particular, the provisions of Sections 6 and 8 of Article X thereof. Plaintiffs believe and threfore ' . assert that these variances were not granted in accordance with Article XXX (Variances) of the Zoning Code, but rather in direct violation thereof, and constitute illegal acts of Defendant City, which are therefore void and constitute a denial of due process and equal protection to a13. Plaintiffs in violatio of their rights under the Constitutions of the State of lorida and the United States. 37. On information and belief, Plaintiffs assert that Defendant Developers did not, prior to the issuance of building permits to Defendant Arkin, for Defendant Developers, is,7 • submit to Defendant City the required Landscape plan and have not to.date submitted such plans, despite the clear recluLroment. of the Zoning Code, Section 3,. Article XXIII, that this be done prior to approval by the Building Department. This Section specifically provides: • "�(b) Prior to approval by the Building Department, of any building... permit, a site plan shall be submitted which clearly and accurately dosignates...th© location, size and description of all Landscape materials...." On information and baUcC, Plaintiffs assert that landscaping meting the requirements of Section 3(3), Article XXIII of t:hci Zoning Code cannot be salt without•, increasing tho parking spacce shown en the site plan submitted by Iklfcndant Developers • • . 4 • ' Y $ , 0 a to Cefet ant City; however, such on increase in parking spaces Would violate the unable open hpaet requirements o€ Section 8, Article X of the Code. tinder these conditions, Plaintiffs believe end' therefore assert that instance by Defendant City of building permits to Defendant Arkin, for. Defendant Developers, was illegal and void. Violation of Zoning Code by Separation of Pair isle into Five Unpl.atted Parcels. 38• As set forth in paragraphs 26, 26 and 27, Defendant Developers have separated Fair tale into five Unplatted parcels without legal subdivision into lots; title to one of these parcels is now in Sailboat Key Condominium Association, incorporated, and two of these parcels have been leased to that corporation. Plaintiffs do not believe that the separation of Fair isle into five unplatted parcels as.shown in Exhibits 2-6 was peformed in compliance with Chapter 177, Florida Statutes or the Zoning Code. Plaintiffs believe and therefore &scert that such aep&ration constitutes an unlawful attempt either to reconstitute Fair isle into unplatted lands or to replat Fair Isle without following the legal platting requirements. Plaintiffs are in doubt as to their rights resulting from such action and are seeking a declaration by the Court as to the legality of such action and, if such action shall be declared to be illegal, a determination of the validity of the building permits issued by Defendant City to Defendant Arkin, for Defendant Developers, • and a determination of Plaintiffs' rights. 39. With certain exceAtions not here applicable, Plaintiffs believe and therefore assert that construction of improvements on unplatted or illegally subdivided lands is 42 :1 ill0,41. Plaintiffs further believeand therefore assert t' • 41 that•any building permits issued to Defendant Developers are ,1 " unlawful because the fl fusrdant Developer n have not qualified for any of these except:iona, ; . M23- i 4 • 40. Section 9, Article IV ei the provides ""file iasnttanree of ptrmitu on Ut4t'i TTltf LARDS shell bo provided tor an tolls ws;< t (1) It than be tinlnwful t'er and. tenon, £ rn' carPo'rn i ram» to erect, have c6 i t ructn, or cauun + rec '," Ve tonyt:rt deer, or raise trpel;p t of cenatructcti, any E' `iTalnq upon iiiny. p i itt:ed- land 1 t i n t t of t•tiamj, n � tLi n+c permil a.0-c isbucd 'for t he erection or conatrucLion of any building t n any unpiattiq "nd, excegh as teereinattcsc pia . (2) The owner of unplatted land may erect or cause to be erected a single family house and accessory buildings thereto on such unplatted land, and a building permit may be issued therefor. .(3) The Director of the building Department, City of Miami, may cause a building permit to bo issued to tho owner of any unplatted land, provides (sic) that a Tentative Plat of land has been approved by the Board and a recordable agreement has been executed and delivered, binding said owner to comply with ell the requirements of pertainable ordinances...." (Emphasis added) Since none of the foregoing exceptions have been complied with, Plaintiffs believe and therefore assert that the issuance of any building permit with respect to Pair Isle as "unplatted lands" would be unlawful, null and void. Section 11, Article IV of the Zoning Code provides for replatting of platted lands, but Plaintiffs believe that no attempt has been made by Defendant Developers to comply with such provisions. Therefore, Plaintiffs believe and therefore assert that tho issuance of any building ptxsnit with respect to Fair Isle, if such replatttng is contemplate!, but: before compliance with such roplatting provisions, As unlawful., null and void. Violations of Zoning Cud° with Itospect to 1•hanc t rued Phase 11 of Bui Ldi.n_. l`ro• .wc t.. .. ,,.,....e.._...q ...�. 9- 41. Plaintiffs: helicv'o that wince Defcndante have t'vi'at'ated flair Isle into five unplat.1 d i.>as.•t'alss, coapl.Lanco 1 • 7 With the toning Code count to t)et:otrni d with re peat to oath parcel conuidered separately. Plai itittr3 believe and thocefora assert that an se considered the proposed construction of Phase I and Phase II of thu building peojeci• is in violation of the toning Cede, but are in doubt with respect thereto and teak a determination by this Court an to such violation and rininti .is' rights with respect thereto. 42. Plaintiffs believe and therefore assort that Phase 1 of the building project, which in the subject of ' Building Permit No. 73-2984 and which is to be constructed ,by Defendant Developers bn Unplatted parcel 1 of Pair Isla (as shown on Exhibit 2), is in violation of Section 5, Article X of the toning Code as to £loox area ratio; Section 19(7)(a), Article IV as to permissible lot coverage of principal and accessory parking structures; and Section 8, Article X and Section 2(93-2), Article II with respect to Usable Open Space. Specifically Plaintiffs believe and therefore,dssert that: (a) Phase i provides for construction on Unplatted Parcel I of buildings which exceed: (i) The square footage permitted by Section 5, p Article X of the Code by more than 130,000 square feet (almost 15 percent in excess of permitted area ratio); and (ii) The maximum lot coverage provisions of Article IV of the Code, Section 19(7) by over 24,000 square feet (about 16 percent in excess of the permitted lot coverage). • • (b) After application or the requirement of i/ Section 2(93-A), Article II of the Zoning Code with respect to Usable Open Space ("at leant ono - half of the required OSAMU OP;' SPACU shall ba at ties ground Iowa"), the building project to R be troftit tuctrci tsplattt±d parcel I Wit is mot the teen sp ree requirements of Bection 1, Article X bb' over 0,000 square feet (approximately S percent less usable open space than required)* In addition, Plaintiffs believe that Beekien G, Article X of tha Boning Code an to Lot Coverage in violated if, as more fully set forth in paragraph 28, the maximum permissible. .lot coverage is calculated bated on the true height of the structures.ta bo placed on Unplatted Parcel I, rather than on the fictitious height from the artificial finished grade which Plaintiffs believe and therefore assert that Defendant Developers� dosignedto evade the lot coverage requirements of the 8oing Code, as described in paragraph 29. 43. Plaintiffs believe and therefore assert that PhasIl of the building project, which is the subject of Building Permit No. 73-2985 and which is tel be constructed by Defendant Developers on Unplatted Parcel II of Pair Isle (as shown on Exhibit 2) , is in violation of Section S, Article X of the Zoning Code as to floor.area ratio and Section 8, Article X and Section 2 (93--2) , Article II with respect to sable Open Space. Specifically plaintiffs believe a therefore assert thats (a) Phase IX provides for construction on Unplatted Parcel II of buildings which exceed the or square footage permitted by Section S, Article X by almost 125,000 square feet (over 13 perccint excess of the. permitted floor area 'ratio) . /(b) The construction to be built on Unplatted Parcel II fails to meet the open space requirements of Section 8, Article X when the requirement of Section 2(937A), Artielo II of tho Zoning Code with respect; to Usable Open Space is applied. In addition, Section G, Article X with ronpoat to Lot Coverrjc is violat-cd if, an *lore fully. sat Cor :h in paragraph 28 the maximum permissible lot: covOI t C,JC is calculated sus ,cad pre taw trua 1 r • Might of the nttuctu.n to tie placed on Vii.att d Parcel fl, tat -her than on tht height from tho factitious and artificial finished grade designed to defeat the requirements of the Zoning Code by Defendant bevolopern as described in subparagraph 29. Violations of Zoning Code with Respect to Unplatted Parcels In, IV and V by construction of Club, Marina, Spa and Pool Without Obtaining a Conditional Use Permit. 44. As stated in paragraph 41, since Defendants `have separated Fair Isle into five unplatted parcels, compliance with the Zoning Code must be determined with respect to each parcel considered separately. Plaintiffs believe and therefore' assert that so considered the proposed uses of Unplatted Parcels TIT, ZV and V cannot be permitted without conditional use permits, which have not been obtained. Plaintiffs are in doubt as 6 their rights and seek a determination by this Court as to this • issue and a determination of Plaintiffs' rights if such permit is found to be required and not to have been obtained. . 45. Plaintiffs believe and therefore assert that 1; "The Club on Sailboat Key" which Defendant Developers propose to construct on Unplatted Parcel V (as shown on Exhibit 5), is not permitted within the Use Regulations of Article X. A description of such Club and shops, prepared by Defendant Developers, is set forth as Exhibit 8. .The Use Regulations of Article X permit a private club within an R-5 Apartment District, but only if it is "not operated for profit" and is the subject of a "Conditional Use", authorized as provided. in Article XXXII of the Zoning Cocle. Plaintiffs believe and therefore assert that "The Club on Sailboat hey", including its ulsopu, will be operated for profit. Plaintiffs; believe and therefore aanert: that the required Condi.tionsl Uao permit haa nut born sought or granted and therefore "Tho Club on r i • 1 1 1 i 1 Sailboat: Hey", including Ltn shops, is not permitted in an R-S biatr et unless it is part of an opartrr nt building or other proper R-S use. Since no apartment building or other proper tt-S use is proposed to be Located on Unplatted Parcel V, Plaintiffs believe that "The Club on Sailboat Key" mot bo treated an standing alone on a separately owned parcel and therefore would constitute an illegal commercial use for: an R-S Dintric S. Plaintiffs believe and therefore assert that Defendant Developers propose to construct a marina on Unplatted parcel. in (as shown on Exhibit 4), and that a marina is not permitted within the Use Regulations of Article X of 'the' Zoning Code. Plaintiffs believe and therefore assert that the Use Regulations of Article X would, at most, permit a marina to be placed on a lot within an R'-S District only if it were the subject of a "Conditional Use" authorized as provided in Article XXXII of the Zoning Code. Plaintiffs believe and therefore assert that such a required Conditional. Use permit has not been sought or granted and that therefore the marina is not permitted in an R-5 District, unless it might be part of en apartment building or other proper R-5 use. Since no apartment building or other proper R-5 use is proposed to be located on Unplatted Parcel XIX, Plaintiffs believe and therefore assert that the marina must be treated as standing alone on a separately owned parcel and therefore would constitute an illegal commercial use for an R-5 District. 7 Plaintiffs believe and therefore assert that Defendant Developers prop000 to construct a health spa and pool on Unplatted Parcel. IV (as shown on Exhibit 4), and that a health spa and pool is not permitted within the Use ttesulat:ions of Article X. Plaintiffs believe and therefore aianer't: that: the Use Regulations of Article X would, at most, ivr:anit: ar health spa and pool to he placed en a lot within an 1 , 4 + +• -28' • i 1 • 1 1 Awl htt tri.e t only it it wars the2 subject of a "Conditional Vim'", aut.herited an provided in Article. XXXlt or the getting Cede. Plaintiffs believe and therefore assort that such a required Conditional Use permit has not been sought or granted and theh therefore the health spa and pal are not permitted in an tMS District, unions they might be part of an apartment building or other proper 11•-5 use. Since no apartment building or ether proper 14-5 use is proposed to be located on Unplatted parcel IV, Plaintiffs believe and therefore assert that the health spa and pool must be treated as standing alone on a separately owned parcel and therefore .would constitute an illegal commercial use for an R-S District. 48. By reason of the violations of the Zoning Coda specified in paragraphs 44-47 which Plaintiffs believe and therefore assert are contemplated by Defendant Developers, Arkin and City, Plaintiffs are in doubt as to their rights and seekt to • 1. A determination of this Court as to whether: e 14 ' ' of law in violation of their rights under the , Constitutions oC the State of Florida and of the United States; and 2, If this Court shall so determine, a deter-: 'nination of Plaintiffs' rights with suspect thereto. ;... (1) Issuance by Defendant City of Building Permits Nos. 73-2984 and 73-2985 was illegal, - nuli and void; and (ii) Construction by Defendant Developers and Defendant Arkin of the building project is in violation of law; and (ii3.) Continuation of such construction will ,deny Plaintiffs their rights and duo process • . a t 1 o • • • M . r . COUNT if t ntAC Jtt fi"f►NC 49. Pianti ita reality! and !Alcor rate paragraphs l to 40 above. When pttt to its intended use, Developers.' Fair Isla project will cunutitute a aubt#tatntial and permanent interference with tha public highways and other public facilities. Thia will endanger the public health and safety O and interfere with the public comfort and public convenience. ha such, the project will. constitute ;a nuisance under the lava of the State of P1orida which will: rir • \)owners in Coconut Grove and'in particular, the Plaintiffs and members of Plaintiffs described in paragraphs 5, 6 and 7 and 8 above; (b) Substantially interfere with the economy'of Coconut Grove to the detriment of Plaintiffs whose • • (a) Substantially diminish the property value of .:; .ths Plaintiffs Gardner and Doheny As well as those Plaintiffs whose membership include property • s members are owners of businesses conducting business in Coconut Grove; • (a) Substantially impair the character and aesthetic value of Coconut Greve to the damage of all Plaintiffs; and • (d) Substantially interfere with'tho access to and from Mercy Hospital to the injury of all plaintiffs. • S0. Defendants in carrying out the complained of Project or in aiding or abetting the construction thereof Arc'wefl aware that this project will constitute a nuisance An4 that the damages; to Plaintiffs from the project are erecter than it is reasonable to require them to bear without junt and adequate Comport at:ion. Defcndasd;ti have not tendered to Plaintiffs: any compensation, but inntead, have persisted ist ed c'astti.Huin9 this F st* Isla pro out despite the objections • s 4 4 t 4* ( • • 4 t to Of Plaintiffn and denvite the tact that there in nO community or public utility whatneever to the Pair isle ptoject* SI. Some of the factors involved in the nuisance being ereated by Defendants aret (a) The precipitous increase in population density caused by placing the 3,000 new residents on 20 acres (approximately 1/32 square mile) Ln an area (Census Tract 68) where the density per square mile as of 1970 Was only 3,776 will cause a corresponding rise in the flow of motor vehicles Pair Isle. All such traffic must travel through the narrow bottleneck formed by South Bayshore Drive, a limited capacity two-lane roadway already endangered by commuter traffic; Pair isle Street, barely two cars wide, connecting Pair Isle and numerous side streets with South Dayshore Drive; and the Pair isle causeway, itself only two cars Wide. Such a dangerous overload of such roadways, even ignoring the unavoidable eventuality of accidents and breakdowns, will directly harm the • community by causing: (i) Excessive, continual noise, resulting from the massive increase in traffic which will'interfere with the public peace and constitute a danger to the health and well-being of the community; and (ii) Substantial dangers to the health and well-being of adult residents and especially their children, who have become accustomed to quiet, safe streets and minimal traffic resulting from the unending flow of motor vehicles and increased incidence of accidents; and (tit) An unhealthy and substantial increase of noxionu gaseous emissions, seriously affecting the already precarious state of • health, welfare and well-being of the community resulting from the unceasing flow of motor vehicles. • $ • 4 •-311 - • • • , ^ 1 • +• A • • (b) The ercatiott t $' barn, ni ght tut, i And other late ninht crntern at entertainment wail causes treat dintresn and direct ha -arm to the public by cauningt (i) an excessive amount of light during the late night hours, caused by an island being lit up,.40 stories high and four buildings across; interfering with the public peace and comfort; and (ii) an excessive amount: of noise; caused by a continual flow of motor vehicles to and from Fair Isle, the entertainment itself, and the natural result of larcge numbers of people in such a small area; and ( .iii) an Excessive amount of traffic which will overtax parking facilities on Fair isle and result in use of residential neighborhoods for the overflow of commercial parking. .(C) The construction of four multi -story buildings (two of 36 stories, two of 40 stories) will. constitute a substantial interference with recognizable safety and aesthetic values in the community and violate established principles of conservation of natural resources by: (i) creating a hazard to the area in terms available fire protection; (1i) destroying and obstructing the previously unrestricted access to and from the Say; and (iii) blocking the previously unrestricted flow of light and air from the nay. (d) The precipitous increase in the number of boats traveling in and around the proposed marina will directly • harsh the community by: (i) excessive noise caused by the sudden influx of excessive numbers of motor boats, all of which swerve no interest or purpose, of the community; and • (ill air and water pollution resulting from the discharge of noxious: emissions from engines Jae the water and air, .and the inevitable refuse which marina users will cast into tho thIy; and (iii) presenting a plsyntc'al ding r to citizens uni.ss{,; the hay area; • 10, all of which w121 make the nay area unfit for um; whith have been traditional in the community quiet, peaceful boating, swimming and fiahing. wlincronn, Plaintiffs pray thlat, upon final hearings L. This Court declare that the building project is illegal and in being 'constructed in violation of the Comprehensive Zoning Ordinance for the City of Miami and that the actions of officials of Defendant City of. Miami in granting illegal variances from the provisions of such Comprehensive Zoning Ordinance without following the procedures for granting of variances are illegal and void and in violation of Plaintiffs' property rights; rights to equal protection and rights No due process as guaranteed by the Constitution of the State of Florida and the United States. 2. This Court deflare that the Fair !ale Develop- ment, if put to its intended use, will constitute a public nuisance. 3. This Court enter, (a) a permanent injunction against further construction of the building project in violation of the Comprehensive Zoning Ordinance for the City of Miami; (b) a final declaration that the building permits heretofore issued for the building project have been issued in violation of•the Comprehensive Zoning Ordinance for the City of Miami and in violation of law; (c) an order directing Defendants Developer and Arkin to restore Pair Isle to its condition prior to commencement of this netioni and 4 • t nn nrtirr' +grim' i + tit it ti f±: t,tt s ,+ ether • +y . and furthar tc1iot nu thin Court dorms nOttonnnty and peoper, PAUU L & '1'1 R)M ON 1300 Sout1i►..at;t First National Bank Building Miami, !'lost 3cta 33131 Attorneys tot plaintiffs ..,- ear kur U. Thomson HEMMING & NEUMA 1 620 Ingraham Building Miami, Florida 33131 liy Joseph z. timing JOSEPH P. AVER=LL 1500 Dade Federal Building 21 N.L. First Avenue Miami, Florida 33131 Attorney fQr. Dale 40. Da teeny Averi3. CERTIFICATE or SERVICE I HEREBY CERTIFY that a true.copy of the foregoing FOURTH AMENDED COMPLA/NT was on this 14th day of August, 1975 served by mail upon the following persons: SAMS, AND1 RSON , ALPER & POST, P.A. 700 Concord Building Miami, Florida 33130 -and- SAM DANIELS 1414 duPont building Miami, Florida 333.30 • Attorneys for Sailboat Key, Inc. and American Advisory Corporation, d/b/a Sailboat Kay Developers; and The City National Bank, Trustee. JOHN S. LLOYD, City Attorney 65 Vitt. First Street Miami, Florida 33165 ,. Attorncy for tho City of Miami, Florida ,, At!y .4 __LKAltv • • . • • • • • •• 11. 40 I• • • • • a • •;j•ti 1r r..F,. • • • • • • .• • • • • • �• • • • •• • .. •* • . 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R..r tL flp btttst 1'nrtet 11 of M the 1,tbtte tit . et Haan PL►v? tt Ma 1dV n, erterI1$ to iteb plt ot thofebt• M tttrr1e11 to P1 txttI tttt Kt lI •, . tAtt pe'rtlt'n bt tetr 1I1e Strent tibsrd, ve+:31cd, II nt�endened trb'1 pdbtit user t'y ettt et $t1nt+t ttesettulten !Ii, 4tl4 islyd Stpie��tnr 9, 19t1, tyUh C«9frrly bf tf.b tnstorty tine bt tol t, Cibcf 9, t'i?StAi. tUit$ Itti!tw. • Stt1ttt Uti I. 1le:br.lthi tt, t'.^ p13t thrra.;t, o'a rt!brded to Alat Cmk 'l Al t'S;t! dL bt the h4►Ilt h.ctWd% et itnRe tb.tAty, fle'IAA, itt•+� ptste,i et it ttnt. t>t :e1J Lb t 1t, 111:ck ITt and tt,yrthN ly of the SneTerty titres et ;all Ut 11, 01e11t, i12 ' fh/ tto it'»'ly et the Lo+thr.rty fit;t.t•et•s?i Line et St,„t,. uty7hbref tans tfsl►l.ss'nn Pteteb b+►ieftattd %.'tstbri tr Ile tattstlf tthv bt 1he btt►tu%bid tb1 1, "tle,ci; 9. 7 , ►, .. �N , if Cttitt t ttl fl t 1 e ti e, 11 *ile • b 'thft ttr'Itlt, trie�e ebinr,:tltq ttaet'A," htvtttO t'l,t 0{' tA1l lttt, betbrdihtl to tha ptefittoftbt, es t•reePdtd 11 Tia1 may, 34 at t0•!;a ? bt the 1'vt tie tetbrd9 of brae Co, ti y, tlbrida, tb the tity et,4tIe'I tttthtelts►tthtttt tt1d2e 1ltt4 with• tb tha totinrtt4 pottituts.rty ri ertbcd oettel: �bMMitO Dt 11.3 t011hta•.t tbrc•`.t bt tho I:ot1t,03tt 1�d, et tho tbvlhentt 1PR et Sttiton 15, tb+'ntMD 33 !eiT, ttan3e • ll ybtt bt.9 ten H tth 0 Ee rt r: !.o r+ihutrs 42 tccanJ1 tett tot skit tcot to tho Petnt DI letbrtt'!111d with ttM City tit tltbr►l t1,ntA;►nt Lint t,1 bthe tbo :howlt'h th3t tt!rtbtn ltrrtt14al Mtbi1 ttty et tttMtt, theft 11i, 4S}#t ikrt,tr Sth fi; Ctt;rt' I' t'inutt'. 1G or•,rheti ttt.•L1 eIbr, the bOst i'cscrit•td tity bf M►sr't tbhtcht t1.e 1br ttl:,yy tl•.'t; 1'chte :�uth ?G e•:^'rc; a►t ntn,t.;L 2: teton9. tb:t 6tefi3 the City al ,ltar.1 ltdfiei'e t ttr4 et fair *snit $ttt:Ot t,i'. yl!v 0• that tota%be1rot ht1bL - City bl t�ionl, Shoct U. A)it ant itt brbtefi3nttEw te'r 94P 41 itet to 11'c t'utnt ct 1l:ginhih3 t:t t'.t Ibtlo•I? ectct,ted tArctt; tttenee Se,uth G3 eotrtct 13 r,hotom 21 ue4as!s Itt%t 'br o;oo Icai: tt.Mcc $bytt, f e•: �rtct 41 ht►.uttt. i;+ :•:LOtst:S t3:1 for »•t.td trct tb a Patfit et tYttetiret ttbfi:l¢ i4Yti. i ;ot1bt$y 6tt,t3 a tittvlar t,.r.c 10 the kit t►.vit, a radius ti t:'J?.19 teat :!Ada ttsntroi an310 et 11 a±oQroat 'i4 +1 t 1t*21 » se,bnCi t0r en ietc ai%'J't4 Ot 4*7,*5 tt•ct tb 3 tk1V.t bl tdt;y913 1'+tntO tarth t,3 gcnreret .�3 f4A,.ttt 04 •n1i gait ft►r :3.7fi teat; trr:n.'t !vth si ee„rrct 22 Minute% 0D ttcor65 tact atbnft t't: tiorthur1y E•a.e:a't tires •f tate trsel «A,'' ler )5,.00 tcCt; t'' •+Cc ti�rtfi SD d0,tt•C% 33 htA'Jtet Q8 t0'cOhts ittt for 03JL► tt.+t tb 0 P7?1ht tit t;,t'uptW p3 Ihtt.et ti'ttt.'tt itctiy'atbny 3 ttrtvt3r tarrvo t0 tI • tight t'aviny 1 fo�iwy':t 7t hi4 ?tct dr.S 3 tllAtrrl ♦t to et $t 4*)t•�7I it; nta.:tct 3. Lc:rr.;s 1 r cn oft dlsIahty of 4it.GS itet to s i'oI?t ot•ten'en.yt tt.tieo *tart? 2.3 t,•;rttt t1 fi#nlics 2'. trtCidt Vc .t f' P 2=21.C3 tcet; thent0 S0+tth t3 Ctyrres IC t,*t.utc$ 33 ttcbadt Wet* tar l).tD trot to rho Poi/.1 bt U.+;tihrirt,tytn2 an.' tctn3 to the tltr el 1►ier.l, faea County, f lor1dn. 10CCtlitR *tilt! *ptwtien 4 Lttd tract "A." f:LtUtO I'tA7 tF tMI' 11't, isteese1t; to t e pit:! t'ee►ee', fs t2tePCel tt1 I'12t t+bri, $* bt Pr )0!4 1t.t •'�±s*f i'+ti'^r•+ t1 t%t71 County, Fit *f'., 7?e M A r'.rttt'n Of the t•.utt••e!t *l4 of ttto, Is, ?0r *N1+•► it'Levth, fir';. 41 Est, D_.c ta,.nty, tltrtrn, beln? ►+aro I,arttcalerty eetettbei as fo**ev$t ' Coti n:t of fhb, Sa;tt`.c)tt tornar of tt'o 1»►tt.cast *1* el tt.e Sovtt.edtt 114 •1 tenon *S. to•''thta Si SYvth. P)wIo 4* toot eni tu+ t:orth ,D Cc;rc:t; ('0 ntr'dIes 42 scc0ry!L Cast 101 )).52 lcd tb ltt. Point et Intcrtrttfts wit!tt'it City et f►iai4 t+.++- .wit tirr of :o++;se S'y ,t ore Lrlvo tns Lro•tn oh t* t t ctttodtt ±ivnitiCRl •tins - tl ty al t�ia :i. tleu• :ta. 4Ytl; t'+r•'ec S;1th Cr3 de tae' *4 ranvtts 16 tt' 0. I. sett along 1t,e bast Cctetibcd Clty ct Ltle 3 trite*-.t tite *or 132 9 (i'.+1; It .A:a iGutt. 2, CcCr.•,s 1l ►smut. 2) tCC0ta$ fJ:•t #ttt+M th@ Gi ty o* Itb ' 1 t•Chb* lift o* roil' *tiles $tr•3c* * f. sh.-ar d :tilt icr18i1 ttvnitiDnl Atla% - City of It16+.1, Sheet t:o. 43R1 on: Its D101c43a1ioA i'n gyt.41 f.etj Ihcnto Scrsfi 63 6a•2rcc0 Ito nt"utc. 2) for 2.53 lcd1; thznCc $avtr 20 Cc3res; s* t:*s .tct 23 tttaaCt Cost ter 22*.;.;t teat *00 Palal of Cvi .ltvra; Itsettc ;cutheabtcrly tben; o ttreular Cwtvo to irlf ti0vi4+3 a rlifvt ct 735.11 ittt ens a tcn1•a1 IMIe of 31 dcr•,rccs '.►G nlnutcs 35 sccDnces /0r an ort distances Ol 4)7.;1 Icct to s S'oiht of law2gA,yj Ihei.0 $w•o1h SCe,recs SG .+lnvicb 03 socor.ds f.ttt ler 0.70 tcet to 1t►e Paint at *!e31nnir3 t:i the 10*10.4t3 4tur4ttte p1tt•:01; tirt'n:c l,rth 31 carrecs 22 niaulc$ 0 tctortlt Eats for 24.10 teat; theAtc t:3rth •�f. dccrrdt 22 tsiMtcs 03 LCC- Ondt Litt for 323.00 *e01 tsai lost •voila-c: t,.o covu.es belr.3 rolneldent with t*'o (3.undary tine of said !rift "A");,r.� st ,:c Sttv1>t tt3 do rocs 38 +•inutcs 03 scconss Iasi, at r4*h1 an2let. 10 tt.o 1Att 42ctcr*tt4 tourse for 11.4* 1C41; t7.0•4L t►sarth At+CI•s.reti 22 f'lnut.s 0: se:onis (ast 1'r 121.50 teal; thrACo 5cvth 43 t:c,rtcs 35 ninrlco 03 oeccnss Gist (or (9.3) la.�*; 11'.•n:e ScwtA 46 aS ,scat f air.�tc; 0 stcon,tt `nest, at 4t'3ht i,ng*cs 10 tha last descr4tc3 eovrte *t'r 14.30 Icd to is r01n1 lecrein3lter refcrrtd 10 as Paint "1"; tt'en:c Ue*rth 11) dc9r0e0 52 r4 utcb CO tcecnds foot *e.r 73.I) Icd; tt..+n;t Skrth 43 Ccgra+cs 32 s+tr.vtes 63 tt,.CcnCs East for 70.5l lest; Ihdneo liorlh 44 Ce rcn4 *7 s cute% tO t.:ce'.Cs tas*, st r1 ti* ae'411cs to Inc *act 4!cscr10.s crjrec for 20.03 Ica!; flume S0ut4 43 lsegrces 33 eitvlcs 03 tac.o'•4t: last for *20.31 Is':/; thaact Svulh G c'eyrocs sit n1nvtcs 03 secenQt Io•.t (or 7)t.55 ijt4t; thcnec.!ovtts 44 Ccgrccs 22 ti1 . •tics t3 s•'t4 *�4i1 for 9.0) teat; 1tcnec SOJth 4) dcrircC; 33 nitwtcs C) !Cron$$ (Att, At 4*�4t c »dot 10 th0 *act t'c>+criod ecvrs0 lar 0*,5) Icot; It.,n o ..,tn 11. •;e2rcct 72 l+l.wIdt 00 sA'Onas I;ust for 200.00 *cct; tIv'cc fount 6l 0tlr4es 7. t,inutct 03 secants 110.t for *54,29 lava; **lento llorth 41 dogrcot: 38 "mutes 00 toconls Vest Ior *5541 /;ct;,tAJn:i• T.0rth 5b sic-,ra., )rinvtc. 02 veconas Post for 455,3'4 (set; lhanelt Iisrt0 4) €CV,ao 30 rtlaVtvs 00 •KO"4$ I:.1* lt'r *03.03 lrul: thv:'c4 3;orM 71► CC(r,)ps 3ii ttinwft . Oa tdcond0 btayt lar *55.31 *o*t; tht:aec ?w'tb 1 4tirCi 2: •4,ws�s 4 seFc+n,Is tact tar *55.27 /%rut; lhonco tior*t. 3* Co2rcao 72 t'inv$rt C0 tccowdt EAst for 1e3./3 *lest 1;s 1:+a 1'oiu* t l 1kt;i,Jw1u. isjl4 last s,cnttoncd af8ts* covrscs 0stitb c.:tnc;dant vi*1r tt,lt @aswdary liob w* Jt1/rO• $tlti 1r;t4i "A"1. , 1.0) • /1111, 13eat 1•'rl1o" 01 'e otore sId irl'et «A" *y4.'1 ni'ova E*ovsllt3a l4.00 foot tCf ty of Ilia'•I $Ioao to 1fa*tar fAay fstiatantt it ►tlA3 a+'a j':rlicdarly lic:crit,,d os /v114vy; • 4 Ot21A •, Na' alctv•d.•:cti$' 4 I'•.* '1" ad tva *Scutt, Cf da'grvut 51 a+lout,'; 03 t+tt'ids (..l *pr 70.1) /t•at; t*OA(O )avlh *! !• t io► 38 ..Inu/c; 0) owd; •tit for 70.•+* 14'n*; lt'a'r.O I;urlh *4 ik';1i•,s 22 ••*AVio* t0 sKOAdt, till I*,r 1t,('3 1•+,H; *Lear,' La..*t, *3 c'v►rta* )S •.iaul«; 4) si�pho Iwo/ +I rd' *t .tnyla% 1. 1n' last 4Ct glbu4 snw.cc Itar 11.4? **0*; *n; ":c i.,,r *1, 06 di'. r,'a* 'I i4,-at, t t':, tccnnd: arst Iw it .*7' fi'i'i; 1l'iwco S.+d14 14 dc;rcvs 72'S4nosc* 1,'9 KC+ * ':: el *.', 4.03 IrcI; It•►••'! t,,rgo *ta, i4•tiri'a4 31* mows.•! (4* ••.scow; It, ".* fw 1,I41 l,'ef; Ilo t4 ',cVtt. 43 +li.• 74 ,0 •33 t'*,•,i,, ri tC,l•�!i I:q. li', :..no /*-all ,I•.tN.q scv'st. tit .li.r.r•.... 72 •'i••vt,.t (t9 s'1c.►As Mrsl, 01 •I'i�'1 Ar.�4 o *0 Ini I'ii •'.'•'.•$', *44.rt.9 Ia"' 37,:•'. iws; lt'.'et's.'.'s*. *3 er.;...'4 3i. nit•u1.', 43 u.a0..4o I►,.t1 *tx 'S.il *i'i,*; II..A•►•, • *a+sit, 4,' .., i,,; 3d •.l•...*i; *tit si.:,..J,, s.i►l I:v 4f,.,1 I*•1; (ti'.',.' *1•714 13 1'st;4s••i► 3e t•IA.,ICt Olt tis.uAii %l,1if Icr 1I.51 *.,4; 1'''+'„t !,:'n111 iG i's•;r,,,, 7, till+t/1r •. 44 11.a/411 •:nII, •11 (l �h* AuMl4•* So Ilµ' Ia $ 4.' r11k0 4cv7W less 4t,•s; 1•44u4, IStvlt, 43 •tal, es* su.'$'' i&* fJ s.,;•.ndc furl Isr 4.1.0) Ito* 10 Is,l' fiat vt 1'Cii*•4'.I'3• • 1' • •• • 1:�►1trltlx r• 1'*u,/ii 1 , • • • • • .. ■1�rt.►a.N.�p•.,•4..-,...<•4•.xwrar-.,,».*.r..sr..,sw,.»,r+,*•.ws-1.,'�ee.s.asns'�Ity�lliiii��i�________+w•iM.►e'�M �.r� ' . , • • • • 4 • t • •M • • • ....+r�Y ,u,: a.. r.'.. i..s'M 1+..k•. .t.. itmaglaw•,a•rr!•as :l{i.,01s0.t.14****Y. • • ( • • .� • e • • , a . tttnttl*tted hate! 201 • • $ . • ' • 1 •.tortoni et tract "t.", telftltb 1'Ihi4 bf attorflhe to the flat %hatte•t, it tetetta to flit Ralik )4 "hit toot t!ia frtbllc 1tcotds of bade icwnty, florid*, tieing A Notion art the tevttwrett ff4 et *MIN it, fealthl0 $4 * iaulh, teno 41 test. Oath todnty, halide• being tote pA►11tu1arIf uessttbed at tetlo.+it • ttatetr,te et the Southeast teener of the itettheest 1/4 bt the teethcltt 114 of Settles I$, tounthlg 3% levtt, Menge tt test ant tun Vorth 0 degrees 00 r+lnutet 42 '.;tend; tntt ter f3.3, tttt to the 1'e►Int et tfiteetettten ilia, tba tltt 1,1 ;,'foil items-eht Line bt South hayahore brlvt t,s %heart; to that Certain ytnttipal ►teat • tity of fltit:il• theft fin, t.3^h; Orate 'both 63 degrees 14 ►saute! t6 teton.!t feast elan* the sett detet$Nrd tit, et Meal ttvweltt tits! ''% for 62s.30 feet; thenct tooth 26 detects 41 r,inutt► 2; tttbndt test Meal the tity bt hi,.r..4 •tstrr`ettt lint of tale is MO ttttet tan t).r-•i on that tettein ttvnitip1i fates • ttte et itle.:rl. Sh.•et tat 434 end ft, erelong•ttmtt tee $g2.1? frets Intact South�63 degree+: it Minutes 2j tetonds ltett for 2.50 feet; lhente teeth 24 degree% Al irtht�ter ?= tttnr.lt cast for 2t4.tu feet to a roint el turvnture; tht•net southeasterly elonq A tittelat trtve to lett have in= r togs►* et ?8s.i0 (tot and a tenttol •ogle et 31 degrees t;6 htnutc$ 35 'Whatt ter *kart d$%tenee et 43?.*I Ieft to • POW of ?ah;rneyt tl.entc tou1h 43 degrees 30 Minutes 00 seconds tett ter ;0.?9 feeti thence Meth 31 .dt4tees 11 nin.rtts 00 tutendt test set 14.i6 teat; theme 'North 44 effete% 21 etinutet CO setends tate did ttC..19 ;tut tt the tent tf testrnieg of the fotto+•tng et►tubed partelt thrrce ttinttnuc ftorttr 46 degrees 22 ntnvtr1t Ste tetot tt test for 30.03 feet (tail loft rentioned three Loutses being totneident a.lth the flounder, stet Of fist teat Wit ert.nte South 43 eetrtes 30 hinutts 00 teeondt test, of tight .+egtcs to the lett dtterilred eeotse let' 0.t1 feet; owe South 46 degrees 32 ►;taunt CO seconds t's►t lof 111.50 itett titarite Seth t.) tweet 35 ninutet tb tttehds tort for St•.Sr feet; thence ioutl. 46 degrees ?2 ninutet 00 tetend► Vett foe 42.50 feet to a point herein* Otte ttte►ree to of tpint ''C"6 thence co:stinue to,.th t.;, erect, 22 nitutes 03 Stiehl, Vest tot $2.50 feet= thee fists* 43 eetrocs 38 t:i r :•tot Co seeo:,dt %:rst ter 51.S9 fat; thet.tt teeth 44• degrett 2? hinutts to teter.et V tt her • 111.S% stet; thence earth 1,) tlegrets 33 minutes CO *;;orals %.'ett, •t tight ;;notes to the list (mulbed tosrtse fir )4.41 het to the Point tt b.einntnn. tunplattt:d tercel 12t3 • tnh-tote e. the •tc•rcdesetShed Paint "f" and run South tt regrees 9? ►brutes 0) secoete t!ett ?er ) teat; theme 1<e40 4$ tweet 36 !irt:rte$ Cl stcbrds sett, at tight elutes to the IASI etterttel stet►; Ter 0.1•t fttti ti.tt.rt heft: 1,4 eryrsts ?: r..tnjtcs CO ittents t:tst tc•r 74.0 feet; tht'ee t;crth t3 c:grtes 62 rir,,tet .2 itt:endt tact tit $1.1$ tttt; lictstt teeth 43 t't•,rees 23 ►tauten CO setorcts teat for 78.51 feet; ;hones C$?th 44 ge tetr% 32 •tr.otcs t0 %everts bat. at ti;It tnglce so the last t:escrited ;curse for 20.03 feet; tht'.te South 4; tweet 3: ftinvtes 02 setend% ;tit tot ),$3 feet to the feint of Ccgir,nit, of the tutitainr detcrlcef parcel' thence ttetin a South 43 wetter ettirutts C3 stcords fast for mat .fact; toencc South t degree• 05 rt1nut•s C0 seconds test for 'gat teat: tire* ••ttsr.6 egrets 22 ►;Mutes 00 satin;* Vett for $.03 sett; thence South 43 eegrces 3; rlootct C0 netted; test, at tight art;te% to the lest ;ascribed ;curse her 2143 Ices; thence ;host,. 44 degrees 2? *.into% :3 rectutts tatt along the toet.4arr tine of the aforesaid Trott "A" for 400.0) feet; thcnee ;:•,.rut+ 43 etyrees 3a ninutet t:3 tetansts Last for t31.53 test; thence $oath 46 do;ryes 27 rsinutts 00 seconds Vets, at tight attics to the tact eeseribet emote for $.01•• lett; ti,c:+te ltorth Ct ecyrees 00 ►..mutes CO *hones WSJ hot 2344S fact; thcnee tart% 43 ee;3sees 33 •.intact CO *;feeds vast tot 3S.S1 fret; tl.cnee l:ertt, tit ;tortes 3t3 ,1s'utct 00 seconds vest for tt.11 fret; thence tooth 1 to tee 22 air: efts 00 seconds ;.test, at riigl.t angles to the IASI t'escribed course for 14.14 feel; Ovate South 43 stereos �1 egeetes 03 seconds test for 22 SO feet; thcnee South i s:cgree 22 etinutes CO seconds fast tor 24.87 feet; thence berth; 8F ee$rcet 31 oinutcs 00 secants Vest, rt rt;ht angles to the lest described tours. for 26.0, feet; them •1srth f) eegrtes 30 oinutc$ 03 seconds !rest for 23.50 fret; °fence 1i;,.rtl, 03 degrees 30 rs$nutcs CO seconds frost for 0,14 fleet; thence Sout1. $ degree 22 tsinutcs CO seconds ;rest. at right eagles to the Iast'dcstrib¢I course for 21.14 feet It the fainted Serienins. fibs; • • That ;wrtion of tt,c aforesaid Tract 'W' 'lying above ficvotton 24.00 feet (fltlr of ;;fond hoer* tout Vitt r flay fate; being tors particuiarly described as follows: 8e1in et the afelcdessrft,cE roan; •'i'• end rvp South 46 degrees 22 climates 03 seconds Vast for $0.$0 fret; throve ;north 4) Ocgrecs 30 tulnutcs 00 *Crones treat. at right angles to the last dascribcd toum for'J,VG facet chance start;* 44 • *stets 22 t►iautcs CO seconds test for 13h.00 feet; thence south 43 "wee* 38 ^Soule* 0.0 seconds tint for 9.02 fcOtt•'• • , Silence 3o;.th 46 degrees 32 Minutes 0D seconds Vest• at tight >cngics to the last described metro for 60.10 fist to the t'e1nt of tegiuning. , 144 • • • • 4 0 • • •' •••r 9 ♦• • •• ixiun ri' �. V4 WWC 2 '• s • ♦ • • • • • • • • 041141411 • • ♦• • • 1 •, • • • ••• • • . • • • • • • • • • •* t • • • •$44••+,.•!..•!w••+7.•e+wt,••MMJ.•r11.a•••sf•,rw.w•a•I1g44414r i.'*%' ;+!y11NMI v4•+r•1v^.,ir*tr.•400411141.,""'.sr:41*ryww-•.,., Y . s..y.,......•.,,•.•4.....t:......r0••M:H•Ar•••••to, ^•re4.rrlr-••.1 •..,• owe •Y.y...ai•are0M 0. +feet+Mrr1 • Is'•.40L4tir••!l1'ofir•++INNwr$$r*•s•••e+... •1 4 1 • • s 41 • •rt+ • • • •' rye ,. i. r • • • - ',13 } Kuper: • a ale •u.a:..0 •c...► t a............. t tt i a• • • • • • Oa 1 41 • • • • • ••tl rOti►tetl rates# ty • • •a • 1 • • A t•'1r11bn of feast "2", tlttitfb i'ttt tat filth it's, ottottflng lb the plat thereof, et Ptterdtd 10 Hat $eel IS it •itge g e1 flue $'abitt hctardt 61 hi/6 fount,. Hotel, bring a pertinn of the Sr.uttn,cst i!4 tDt tttt4Oh 146 ihtattfttp Schott, 1tar.gt hi testi bade taunt?, ttnttdet being t•sntt;,artitui;+r)t dtttelbed as foilowedt : lhotsrt.te of the ihutheast tornt•t bt the gottheastvely set h1 the tbutheast 1/li bt ttetlef 1t, te:mshlp t1t ttat1t, titt41 St tttt nhi tun north 0 eegrtes P5 hsnutet 47 trconls test tbP )).52 stet td the totht of lrtertrttion 1.ittt the tliy e.t ttirnt llenu..,nt tthe bt t!,ut'. batshntt btiva (as therob bh thet t.rt+tin tt,nittpat dtiot * tity et flit..=i• !twit •, ttt.); ttutote South 6) dolts.:t 14 tin:tut id t. tonJt tte•.t atnng the lest ettett;ed thy et diiemt t'.enttoent tone for t;;y.3b rrtt; ts.ehce South i5 d••,rtet 41 hAnutru tt srtbndt tact nibbq the tit, rat 'Mel; Pronott+t 4101 of tilt ltiet Sttt<et tat tho•.n bt► *teat tt'tatn t••,nitivat Wet City of ltioit. Sheet ho. 4)A) ah4 its, prattetgatioe tat ”3.4teett thane South t) +!:orctu 1D t:fhutet tttondt i!ett for 2.S0 stet; t1•cnte %tett, ie degrees 41 eitnitt1 !fi trttn,tt tett for ?24.65 'rr.rt ton Point bt tutvaturei thcntt teuthaasttrly altrng,a ttrtula. tote to lett ftal• 11'10 a tatiiti bt ytl;,tq tent and a trntrlt angle of 11 depot $0 hitutct 3$ tttonds tot an art dittante Of 4).111 fleet tea i'utnt of laigt:ncy; t!;•n-e Sbath ,9 drnarett )0 nihate: b2 tt:tonds tett fee,*4.)8 tett: deems! Zia►te )1 d&Irta 12 nihutes '00 snood% tout fiP 14.14 feet: thcntt north 46 dthreet 22. Pinetet 00 tetdndt fait tot 400.0 fait ttaW last t•enttbneet ttoa v,,u.uet being tcsncideht uith tl..• bou4d.try t.tne bt held tract "1."); theme South 43 ddorris )3 &butts tO teeor<i;s East, at riy!tt ongict to the last described tourte for 124.00 feet tea paint ltt'rele• Otter reteettd to as Point "t"; said point also Leib, the Writ of eelir:ning Of t!..! tattooing t'ateribtd partelt !hems South t0 degrces 22 mins:tes t) stto••dt a tt ter r0.r,0 feet, thcntt teeth t) ttegttes )0 hihute% t0 tetbeds tMt ter 8.41 feet; t1.tnte tc:,tt, 1.4 t!c,tret. 22 ►.mutts Ott sttet.r•cs 1,'4st, at right orgies tb t`•t fast described tag•tt tot 11t.0 feet to►a point htreinsttYr rettrr.•d to as Twins "F"; :t;tnte North fi) degrees 52 141t+utCt t3 tetttrat east ter ?En. lett; t••tnt: 5;utt. 4) ,,�y ets )3 emboss:: to tt.tot.dt taut ter 0,S1 Stet: t.ehtt 1:erth 40 Cegr.et !2 hihuteti 00 tetenet test. at right ah,1et to the last dettti%aed Cburtt lb! 20.02 feet: thence %set!. 43 r•:yrtet 33 ttlnttttt 03 tttbnet tatt for $4.$2 fact; tit' . Vntth 1 c'.,tce 2? nitutrs CO stecndt tali for 31.11 ttet; hearse teeth 03 *egret% )t, hit.utet DD seconds t.,t.t, St right ar.glut tb the last t't :seised toasts tot 1t.'.14 nett ti'!'te teeth. 1.3 donee.% 3:.,lr,t.tc: 45 seton t t.,:t tot ?230 fleet; t!!chtt tt,Lth t'crteet )S Messes 0) tetanal felt far i3.3? stet; thehie test'. 1 Ct•Qtett :; p.ihuttt :2 tetehlt test, of rtt!.t angles tO tt:e tett ttttrit.c,t teettt tbt 24.0 tett; thcntt 1:lath 4) t'cyta•ts 33 ►,!butt% tt tutt'et t'ctt tip 2).0 stet; thehte 1:1•th 1 •t'ef,•ret 2t hinetet 00 ♦tit. tt tett for 14.14 feat; ttcr.te South tit decrees )a minutes C9 tcttnas tett et tiy!tt.eh;lei to t:se Lost utittitatr tevtsa for 31.11 fttt; thence uzet!. 41 4eytc.t j3t.:inwtts 02 tecent4 %eut for 0431 fttt; tl.tenC0 Muth 44!egrets 21 t.inutet 02 tdturet tact It tight anglet to the iota deittilee forms' tor 20.tS tetti !1*ar:et i:.'rth t) dtgrets )0 cihytes 02 seconds t,'ett for 14;.42 feet; the►•cc 1:orth 3 ceyrees St titian% 02 tettNet tact ftP 1t.60 tett; tt•`fiee tsont 4) *'egret% 38 r,lhetct C's ttec.net Gott top 313; feet; meets tooth 14 d:grett 22 rit.utts .ZS sett,ndt test, At tight attics to the lett detctibc.s cc.urte tot 15.51 feet; tf:.nee tooth t) tegrces )3.:ruses CL• teter•.s test ft• 14.t+1 feet; thence South ht. tesrccs ?2 minutct Cl setondt Vest ter 43.$0 tart to the. Point 0t tr)irhint,. SOCCIOth N1IM . • that portion of tht aforesaid 'fret "t" lying •that ftcvaticn 14.0 tree tttty of r ati horn to o t!attr say 0a• tv..) tein'tote particularly *nettled is foulest: Stein at the aforcdetctibcd trim "E" art run So✓th 46 **grew 22 r4hutts 00 seconds west for Seen tett; tt+ton torn, 4) Ec;qeers )6 eittvtei C'3 secoadt t:.st. at iig!tt omelet to the last resulted courts for 0.02 feint thcntt %Ott% 46 *tortes 2t nir.utes C3 scose.el. {act for 127.02 feet; boned Stein 4) eegrces 31 ribates tti t:w.Cs fast tot •1.:g tort; tt.encc South. 1.0 da;rc'es 22minutes OD seconds least, at right angles to One last etsceited Course foe 040 tett to tt.c i'-oit.t of ttginnino. TOCtl'ttttt it1Til that psrtton of the afortsrld tract "A." lying oboe* Elevation 24.00 feet (City of Mani etean Loa Voter bey 044 betot Lori pttrtitutarly describe*. as folto..st coin at the otoredescribcd Point "r" and run :earth E) degrees S2 r.fovtcs 00 seconds Cost lor70.1t test; thence South degrees )0 *Inuits 00 seconds taut for g3.S1 feet; thence ltorth 14 *egrets 12 s.inutes 00 sektnds tact for 20.02 • lett; thence tovtt.t•3 ecgrec1 )3 rinutcs 03 seconds fast, at right angles to the test detteitc4 coat** Est tl.•.Z resit thence t:Mth IS Heiress 38 niana.;tcs C? s:co,ds nett lot 21.E+5 fret; tbence South t6 degrees 22 Mules; 02 tetssds test • (0, 6.00 fees; te•snec Yortt, 80 regret% 26 ninutc« 03 seconds vast for 7.15 fret; thence 1.artis 4.) *cites )3 *.i.►utss *3 • *coCn:s Vett for 20.82 tact; thence te.uth 14 degree* 12 tutnutr-t 03 seconds %cst, At right Oug1c$ to *Fa Lett r1c$cti1C$ tourtc for )2.36 fret; thence t:rth t,) .:cgrcet )e t.lnutet 03 seconds vest for 11.75 test; thence •isrch 18 ecgrcc; )0 .•4rwttt 00 secrnes vest for 1).03 tact; thence t:orih 4) **greet )t: minutes 00 seconds Weft for 12.40 teat, thou* ovtt 44 dcgrct.s 22 ranutcs C3 seccn,1 sects. at right angles to th• Last Ccst;rlbcd count for j.0) test; ttItnrtec Earth ) tdtprces 0 minutes 03 saco'Js ucst for,6).00 loci to the Paint of tcsinnln . • • '•. • EXHIBIT 5 it41gQ 3 • 41 • • • • • • . 4 • • � • • • • • • • • ••, •, • • • • • • • • • •+ • • • • • • . ••.••. • •..,,wY''a•wM-•••� ••'^•+,••i+rMM+rMM•N••M.e 'r••N'.' t; w#47.40••ur•y"•farr+••4u*-.t«.,*r.'#***-sr* n•r.•-*•sME'4•,tt*M:111;r10.10.9 #r4w1MN sM� �P11.1 ;0 w•• •4•,.0 r.•v••7•e!#•Mp••er e•ryr. •••af-.t+mr•=n.••..•w yy MtM•r e•teat+t•r••••s0i• ••#“40* ****••r•,4;, ' • .• # • • b'+r, tt*leiti fit • • morldit • • 6• • i• • • • • • • • • • • • .t 1 o M 1: , +� itt' tr lr 1s1o) tamed 1tp9, tot Arc!a 20.43 ecres. ` s�i • 4),W1 Sr • f t . it er ! t~ 60 r s0 u • f i . • • ,�� .�tt+�s XA q =o' b Floor Arco Anti (F.A/fi.) 1# eporteltifit 'AttION3 (Ciai•sys fig •• 7Y/t• 4 $ tpTf • • • �s .• o iS 2•Z • • 1e�wt,b1oF.A.R. ft 2.2 X 889,930 sq: ft. 1,957,OC7!sq. ft• • '&01 Apts. Tower Pi., ;! 1. 4 nvern° 1,383 :.it ft. p ito! ltp: s. Towor t2 . , • bvorago 1,292 „ u • ' • • • 00 OCAS; 'totter /►1 i'40 (1s.) 1st - 38 fi. ••. )9th L. 4C;.' t f15.• 1.acI'. Equip.' •• 2 f 1 s. • 1 t• • • " •• • t • 7o�,•at•'//2 irovi sod fro; 40• f i s. so 36 f i s. ) 1st"' 34 f 1 • • •' . 12,290 sq. 35111 •- .36t h. f I. • • • • , • • 14,129 sq. Poch.. 'Equip. •• 2:f 1 s• 3 • • s.• • •• • t • $ • • t•r • .• • • • • 7 • • • sq. ; • 4 / • 12,070.8 sq., ft-. X 38 458,6S.70 sc. J;•• 12,613.$ rq. ft. X 2 e 25,227 t 1* • 2, 304 t► •t r• •• , L %-sq. .�.r•.••�.. • .• • • • :• • + •4 i.. Totgr.3 140 f1s."sini1br to Tower 01). To��•rr•1;rr tab fis. •simi tar to, Th::e•+ rt,'f ) 1st 34`• h f 1 • . 12,070.8 sq. f i . 35th 36;h f 1. '1Z,613.6• sq.' •.tech: 'Equ 1 p.' ' 2 f i s. • • . , • • • • . • •• , •. ; .�, , •- • •• • • • • • . • Club Fact 1 ity L .S1A©ps . • • • • • • • • •, L'fi1 ity 8ui !dings • '' •.. • ` • Center Entrance Buildings f2' ea� ) • • • rt` . X 34 ft X 2 • •• • •s • • • . s • • • • , .• • its 1 4 aI6•r • • • ♦ ♦ + '• "Pw•►i. E ci 1 ities Cooling Toners • • • • • • • • • • 1•••• •• • • :: •. •. • • .. •• • • . •• • • Pzssage•+.ays t2 Ca)' . •• it .•:. • r • r. • • • • • • • • • • Shops {2r.d phase) •• • • • •• ,• •• • •• • ► • • • • •• t,� • � • • • • • • • • • • t• 417,060 e . 28, 2 a •t `•t),47k s* • • •• • • SW%• •• $.. it •t. . tt • . • '�• 486,271 sq. • X 34 X 2 .• •• • • • • • •• • • .•t • . • r • ♦ •• • • • • • • • t • • • .• • • • Siog •J •• •, f:errca ion Fact I lty (2r.d, f hw se) • • • * w • • • •• •• �•w • ••••♦•••S• • If • •••• .• •• •• .* , •It • • •. 70sst1 1'. A.R.' • .• %• •• : •% ' • • •, • Allowa310 F.A.R. • • • •q •• • •• • • • .• • ,• •• • • • • * •• • • • • r • • • • • •• • •• • i:xin PIT 6 PAW, 1 • •• •.< • • • t=• �410,407 sq. t= • 23; 227 sq. • • 2,354 5c. f.• • 43r, sci .: . • • tor • 44. • 52,086 sq. ft. • •• • • • • 0. • • • • • • • 5,628 sq. f•:. • ♦ 17,166 sq. • •=• 2,020 sq. •• 4.. .• •{'1'. •,. • •: •..• 2,800 sc.`f: • 4• • 4 •• • •. • • • • .11:1, • 6,223 sc. •• SA 1 • • • • • • 5,628 sq. a' .• to as • .; • • • • • • •• • , • •• • •, •• • • • •• • i • (, 9a2, 953 sq. ft. 1,957,847 sq. ft. • • • • • • . • • .• • • • • •. • • • • • • • 4 • • • i •, i $ ♦ • ` •11.O.' X .t, .. •• •.1 • • • • ''' •12.0 X •07 el'• ' NOZI,. I. 11. 3% ):. 05 +� • .ri •11 • . • �• •3271 • or 7% •,•�, . • •• . . for Entronc� M1 dg ; 30' or 28% 102 sq. ft. X 2b1dg• 12,304 s b racllify �5S sql f! • • • t.X 2b1dg. • Ut1111y Bldg. 21i sq. ft. • ,• se • .3pY.•07 ,�• • • • •v, • •t•• • • If/ y85 3.dQ • •.. 9 Pi. • or 24% • • i►+. Q \ y • • 26% • • • • •. • .*.•• • • • ,32',9r s•., • • • 2,446 sq. ft. • 11.1 % x -46' • a 2.89 ••• .9.`t 7,tt•Y • • % X 4.20 * r . OD!, rec11 itio.s 19' or 30p • 020 sq. ft., ' . .. • ,1 `#I" x ' .u. .51. $0 X. • • oD! incg 'roger 22'`:or, • 301 • •• • • n00 sq. ft. • 2:5,'' X •.-3?-- .75 • .. - , ' ,7:7.,, •• » . sageti.ays • 31' or 28% �j " • • • • `•` . 40 sq.' f`• • • 2. 1 f X•.•�f •.�7 •.••i •,. • •' : ••• ••••••• • to rcatioi Facil!`y 33' or 20''• :•''•� • • '• • • • •b2f3 SC `• . •• •,d.•• • i . f.. N N.Y. ,2tr' # '1.3 •t _• • !,152 sq. • . ' • • • •` «r100.,1,, . • Y > !6 i;3fi%: • ' •'• '',• t ,• • • • • j• • • • • .• •` • • ♦ a • R CUIRZ::£trTS: er'ei 'I40 fist •. •• . - • • •- • •' . !' !~I • ' • 9 Kakis Unlis.`X 1•.0' • . • • • is. i d .• 2•audio ,: X 1.5 • • • :•;: ';.:I` • • • 1 •• 2 BR • ' X '1. 75 • $ .. ti ••. • 1:75 • • •• • ,., • s a • , • * • • •, . . •.. • ,•• • • • •• • • • • •a a a • • $ • • • • • • • •� * r . 1 •. ,� OR • • X 2.0 ' ' • •.. • .; 2'' •• • • • • • 3U f 1. 1 •- 3 BR X 2.0 X 3)5 f l a, . ": 72 ' ' • • • *' 4 2 en • • X 1.75' .�: 36. " s .: •' 52 . `•b ` ••. %•1 •+ 1 Da - + • 40 il. ., 1 •�20.4 • X.1.75 • • •%+ 1.75 . ✓•-3UR • �X2•,• '.,• '•.»•.•' 10-+ • ♦ X 1.! X 2 X 35 iis. 10S . . •' • • • r••• •• • . V • ,•, • • • • cd from 40 to :$G flu } .. `...._.-.•.....• •....--•.•........ • . • • '. .:• 41ia10%Unl1:• X 1.0• •'.• •♦ ' ••4' . 1 ud 1 o ' • X I .:'+:. ' . ''•: 's" G •' X •• 3 tla X 2 X 2 X 32 •(1 . • 12tb '. • 2 •• 1 t'!t X 1.5 X 2 X 32 ilr.. :A • • • ; •.' 4 4 2 PR • X 1.75 X 4 2. 32 (1::. 1«•1 • PO 119l01 Unit:: 1` (Pt' I: 40 •, 40 • .. ti 1 :i:'.'. 1.�(cat 10 ., •• .• .» • • • ., • • •. *4 .,• • • • • • • • • too 4� 204 tit • •1 . • 3ro „43D f1•• •, • • • • • ,tt•f1 • • • • • • • i 1 Studio/2 f 15. • • • • • • • • / • �• r r • ..•t. •• • • • ,• Tower 114 (3G {1s) .1st n1. Ind 1"l. • • r• •• +r 3ra-34i1• • •4 • • • 1 Si•udio/2 'i 1s. • 35 36 f 1s. ♦ • • • • • • • • r• • • • • • • . * ' •• • • •• • • ,0• • • ' • • . • • • 1•. • %• . • •• • : ••' 9 is i is Un I tS • ..2 Studio • . .• • 1 •• 2811 1.3g1 a • 20E1 •• 1 •- t U2 , • • w 40 Hotel U:++' t . 1 coployeef 1O Units • a .• • • a • 5. 01u6 Facility (Mese. 1) • 6. CIO Facilities tPhase 2) • 6.223'. , • 4 'ark. ft./car • • • . • • • • • •. • • :• 4 * • • r • • • 1' OD • • . $ 0-o161 T#' "•a rs ., • • b lan t •o V2 4 • 252 1,13 • •• • • • • . • • rx1•0• it 1.5. x 1.75 x 2.0 • x 2.0 .>: 32 x 1.75s'32x x 1.5 x 32 x 1.5 x 16 1 for 2Urlits •: . • ► •' • • • • • • • 8 4 • •. • • • • • • Ito ♦ • • 16 • • • Taal Parking itccutrearnt Existing Parking 1925Spaces Ei;ist inF, Parking 106 w Spaces (ii /©) TOO L 1 Parking 2031 . •• , ,. LOT COVEIIAGE (Pr i nc %Dai kccessory S'.... vres'! : , • • • 1, Tower ill 2. ''Tower 02 ►•• Tower 03 • • Tower •r4 Cc•.:tor Entrance i;1dg.(2) •Give Fz:ci i it)' Shops (2) t U#i1ity •Prot fFci 1 1 t ie5 Cooling Towers • liver -eat ion i MC i l l y . ' .•4 • • y 1.2, 613 sq. ii: C% 11reir (1121A 5o 1) Dm% heel* tptipse 2? • Acit1.+1 tot Coverage . • 14,129 " • • 12;G13 12,613 12,304. 16,958 12,446 5,62a• 2,020 2,000 5,620 U 11 11' 11 11 u 1 11 ,41 11• 11 tl 11 11 ,1 11 11 1 J/ 60. ! • • • •1 1 0, 9 i 0 4 09 090 tt 1t 310,560 sq. ft.' • • 11 W', 9'11 .'+. (•• • 4 : i4 s , : � - _'e/ % � w.r.. w•+..+w� , • . j r • • ,+,'• 1 • l 11 • •• • • • • 4 • •. • • • • • •, • • •• • 4 • •• •'• • • 4 , • • • r • 1:fit i 3' f•t' G i4 • • • .• .• • • • • • • • • •, • • • • • • • •• • • •• • • •*, • • ••• 1 • • • 4� , • • • 466 4• •1 •• • • • • • 2 • t 224 • 48 • ' .24 • • • ••20 • • , 41 ,• • • 20•3 4 • • • • • • • ♦ • • , • • • • • • • ••• • • • • • • �• ••• 4. • • r ♦• i • 6;' • • •' • • . • s• ♦a �• • ••. '-• • '' . • • • •. • • • it, . • ', • •# • • •♦ • - •• P. ... • , • • • • • • •,•♦ • • r.. • • • ,• • p • • • * •. • •• • . • • . • • • it • • 's,4 • 1, •'.... • • • • .• •, ••. • • • i. •; • •• •* ..;•'% •P ' • • •• • • • •' • ' 11, . .• ••• •' .• ..• .. ••.# .s ♦• , -•... .. 1E • • •♦ , • -• I,• i,sr ., 411. • ' • i • • • ••.• • • 111 ** ••*` • • • • • • ••• * • • •• •so • , • • • * %••• , • ♦ • •• • •' • •• , 4• ♦ • �• • • • • •• • • • ♦ • �` • • •• • ' ♦ •.• • • • • ' * • 'sip • • • • • •• •• ♦ •. • • •• •s•. •• •1•• ' • ...1 • • ` . • 1 • • • • • ' • • • !• • • • • • • •f! • • • * • 4 . • • • ! ♦• I•It • '•• ' • • ' t (••• * • •• Op •• f s • :• • • • a , • • • • • • •,• • • • • • it •• • 4• • .. • •• + •' ft • 7 r •.•1 y. A .... v• • 4 • 4 • •• • •. '•1'S• • • • • •• • • •• • •. • • 4 • • • • • , 4 y TSS"Ern . •- • - • 1 �`1 ,. 34 • �a • •� Si 1 • i5 t ••••M'• . • • • •• s• •' • • • • •• • ♦ • .'• • 4* • •• • . • 1► • • • • • t • tN 'r'tui t't1` COIT COURT OP 'J'HI fyirt'VNN'iit 40DtC!Ate CIRCUIT, 3tN AND MR' t31iD8 CoUUTY, I`'t.+OfIDA. STATN OP FLORIDA fyx REL. FRANK C. GARDNCA and PRANCES G, CARDNLR; TROPICAL Atfl UnON SOCIETY, INC.; TIGERTAtt. ASSOCIATION, INC.; AYSHORU ttO 4EOWNLfS t ASSOCIATION, INC.: COCONUT GfiOVS CIVIC CLUB, _ and FRANK C. GARDNE;R AND PRANCES G. GARDNER, and. DAVID A. bOHENY, Plaintiffs, VS. SAILBOAT KEY, INC. and AZMEIRICAN ADVISORY CORPORATION, d/b/a Sailboat Rey Developers; ARKIN CONSTRUCTION COMPANY, INC.; THE CITY OF MMIA:MI, FLORIDA; SAILBOAT REY CONDOMINIUM ASSOCIA- TION, INC., a corporation not for profit; SAILBOAT KEY MANAGEMENT, INC.; THE CLUB ON SAILBOAT KEY, INC.; JOfN C. SPENCER, VIRGINIA Q. BEVERLY and WILLIAM A. VAN NORT- WICK, JR., as Trustees for FIDELITY MORTGAGE INVESTORS, a Massachusetts Business Trust; _ CABOT, CABOT & FORBES LAND TRUST, a Massachusetts Business Trust; and HOSPITAL MORTGAGE GROUP, a Massachusetts Business Trust, t Defendants. • 'Genera/ 7urisdictiun Division CASE NO. 73-0449 l7ESpONSIVE PLEADINGS OF CABOT, CABOT & PORBES LAND TRUST (CCP); HOSPITAL MORTGAGE GROUP (HMG) ; ,7OHN C. SPENCER, VIRGINIA Q. BEVERLY, WILLIAM A. VAN + . NORTt4ICK, JR., as Trustees for FIDELITY NORTGAGE INVESTORS (FMI) ; and SOUTH-- EAST rrn:;P NATIONAL BANK OP =MI, AS TRUSTEE • • i• MOTION TO DISMISS Tho Defendants, CABOT, CABOT & FORBES LAND TRUST (CCF); HOSPITAL MORTGAGE GROUP (HMG) ; JOHN C. SPENCER, VIRGINIA Q. BEVERLY, WILLIAZ! A. VAN NORWICH, JR., as Trustees for FIDELITY MORTGAGE INVESTORS (FMI) ; and SOUTHEAST FIRST NATIONAL. BANK OF MIAMI, as Trusted, move to dismiss TROPICAL AUDUBON SOCIETY, INC.; TIGEKTAIL ASSOCIATION, INC.; DAYSHORU HOMEOWNERS' ASSOCIATION, INC.; and COCONUT GROV4 CIVIC CLUB As parties Plaintiff in this suit and/or dt iutnu the Plaintiffs' Cooptaint upon the ,;round said Plaintiffs are PAP4, 1'PINQ, t1J+w, *$M8iff 1 $AtfIM MA• OWN SOW 1t A014 , ! t• • , • • • • without st:ntttlittg to maint.n1t an action (Count It of Plaintiffs' Complaint) which necks to enjoin an ail r t+d viblatL n of an existing municipalordinance. as , 295 toe 2d t,5B; 5tatt a rcl. Qarencr vnt Saillroat R , 206 So. 2d 616. If these Plaintiff Aatoeiat;ions Have no legal standing to maintain an action to enjoin an alleged violation of a municipal ordinance, then they have no standing to seek a declaration as to the validity of a municipal ordinance or 4 building permits issued thereunder or their rights thereunder. (Count x of Plaintiffs' Complaint). Moreover, neither of 4 these Plaintiff Associations is a "person" as Provided in R F.B. 86.021 which empowers the court to grant declaratory relief in the circumstances as pled. t±± r.xIe1. aC trc!!, v1. Ssit� Oat uniERE oRE, said Defendants move for a dismissal. ANSWER t' The Defendants, CABOT, CABOT & FORBES LAND 'TRUST (CCF); HOSPITAL MORTGAGE GROUP (HMG) ; JOHN C. SPENCGR, VIRG/NIA Q. BEVERLY ; WILLIAM A. VAN NORTWICK, JR., as Trustees for mum. UORTGAGE INVESTORS (FMI); and SOUTHEAST FIRST NATIONAL BANK OF Allah', as Trustee, for answer to the Plaintiffs' Fourth Amended Complaint states AS TO COUNT T 1. The allegations in paragraphs 1, 3, 4, 1.1, 13, 18, 20, 21, 21(i) (MI 21h, 23(a) (b) (c) (d) , 25, 25(s) (b) (c) (d) (e), 26, 27, 27(a) (b), 29, 31, 34, 36, 37, 41, 42, 42 (a) (i) , 42(b), 43, 43(a) (b) , 44, 46, 47 and 48 (and sub- sections) arc denied. 2. The allegations in paragraphs 1.4 and 15 aro admitted. 3. The said Defendants are without knowledge oC the allegat i.an:j in paragraphu 5, 6, 7, 8 and 33, and, therefore, they are denied. • 1 ' t • • 4. Raid Detethdants deny that thin in n proper aetiutl tur declaratory action under P.A. 00, and deny that Plaintiffs Have standing to properly maintain this action. Said Defendants deny the other factual allegations in paragraph 2 (a) (b) (c) • *. With regard to the allegations contained in paragraph 9, these Defendants state: they admit that the Defendants, SAILBOAT K1 Y, INC. and AMERICAN ADVISORY CORPORATION, are Floridacorporations having their principal ' offices in Miami. They are without knowledge tka to whothar these corporations are in good standing. They deny that the aforementioned Defendants (SAILBOAT KEY, INC. and AMERICAN' ADVISORY CORPORATION) are currently engaged in foundation construction of a complex of buildingsfor a building projac't lying with Tract "A", PAIR ISLE REVISED (34-70) . They are without knowledge as to whether the aforementioned corporations are asserting any right to continue to engage in the : i aforementioned construction. They admit that there are approved plans for four (4) highrise buildings on the above described property, which plans were approved by all governmental authorities and which will speak for themselves. They deny that any building project is presently under "construction" and further deny that the approved plans are in violation of the comprehensive zoning ordinance of the City of Miami. Affirmatively, these Defendants allege that the Defendant, SOUTHEAST FIRST NATIONAL DANK OF MIAMI, as Trustee, acquired title to the subject property from the Clerk of the Circuit Court of Dade County, Florida, as a result of a mortgage foreclosure sale wherein ttia legal interests of the Defendants, SAILBOAT KEY, INC. and AMERICAN ADVISORY CORPORATION, in and to the said property were extinguished. A copy of the Final Judgment of Mortgage Foreclosure is appended hereto as said Defendants Exhibit A. A copy of the Certificate of Title referred hereto lac apl'andc'a au Defendants' Nxltibit U. The plans roforrod to • • • • • • • 3.n paragraph t Were thn plans of the former owners. .fly virtue of the Final •?uclgment of parec1ct':ure and the Clerk's Certificate of Title, these bci`cnrdant•:; an record title tumor and as beneficial owners) have become the owners of the building permits under attack by the Plaintiffs in this action. Though the former dcve1opern tDcfendtints SATLDOAT KEY, INC. and AMER/CAN ADVISORY CORPORATION) had approved plans and secured building permits consequent thereon, which plans and A permits are now owned by these Defendants, legally and beneficially, and which plans and permits are legal in all, respects, the Defendants, by these presents, .apprise the court that they have amendments to the plans of the forme owners on the drawing board which reflect a substantial reduction in the density of development of PAIR ISLE. A copy of these amendments will be filed in this cause 'as soon as they are finalized.1 The said Defendants will accompany the filing of the new amendments together with a notice of filing, so that all interested parties in this action will be so advised. %hen the amendments are'uo finalized and filed herein, these Defendants will seek their approval as is required by all governmental authorities and will implement same. The amendments, as described, will be in conformance with the Defendant, CITY OF MIAMI'S, zoning ordinances without requiring any variances. Additionally, the present grade of FAIR ISLE will substantially remain unchanged if said amendments are approved. However, if the amendments, as described, are not approved, these Defendants reserve the right to proceed with the plans, without amendment, of the former owners which are still legally existing and now owned by these Defendants. All other allegations in paragraph 9 aro denied. 6. With regard to the allegations in paragraph i0, these Defo sd:,nt•s states they admit that the Defendant (MIN) • hen procured tht Jen:ulnae of building permits from the City of Miami to construe': the building project for which the building permits wcrt' • isrueclt however, thane Defendants deny ' that the said building reunite were unlawfully issued in violation of the cot„preherelive zoning ordinance for the city of Maid. Defendants admit that the permits are currently in effect, but deny that they are being maintained, in effect, in violation of the honing Coda. 7. The said Defendants are without knowledge as to tho allegations contained in paragraph 12, and, therefore, deny. Sams. 8. With regard to the allegations contained in 1 paragraph 16, these Defendants state: these Defendants admit they have purchased PAIR ISLR at the foreclosure sale (the Defendant, SOUTHEAST FIRST NATIONAL BANK OF MIAMI, as Trustee, . y holding legal title) but deny that the permits procured by Wit Defendant, ARKIN, and the Defendants, SAILBOAT KEY, INC. and AMERICAN ADVISORY CORPORATION, were illegally issued "through the connivance of Defendant, CITY OF MIAMI, and its agents and employees". For further Answer, these Defendants adopt the allegations of paragraph 5 above. 9. With regard to the allegations contained in paragraph 17, these Defendants state as follows: these Defendants deny that the issuance of the building permits were in clear violation of the comprehensive zoning ordinance for the City of Miami, but admit the remaining allegations of paragraph 17. Affirmatively, the permits as issued by the City of Miami were legal and remained legal and outstanding. All other allegations of paragraph 17 not heretofore admitted are hereby denied. 10. With regard to the allegations of paragraph 19, Chose Defendants state; they are without knowledge as to whether the Plaintiffs, CA RDNl.R and DOflgNY, are the owners of ningLc- family routduuccs which abut this building project f $ 4 4 dirnctl.y across the waterway ur that the said Plaintiffs owned those residences for many yearn, and, therefore, the allegations are denied. The remaining allegations of paragraph 19 aro dunicd. Upon information and belief, the Platntitfsz GARDNER reside at 3325 S. Moorings Way, Miami, Plortda. 11. The allegations contained in paragraph 21A aro denied. Affirmatively, these Defendants allege that the Plaintiffs, GARDNER and DOHHNY, are without standing to maintain this action since the permits were issued in conformity with the law, including zoning ordinances, and to,` . allow a collateral attack to be brought thereon would invite confusion and havoc upon thee construction industry, land developers and the building trades in the State of rlorida. Additionally, all building developments, if such a collateral attack is allowed, would be placed in great fiscal jeopardy i.' now and in the future because of the unavailability of title insurance commitments which would be an obvious result of a judicial holding that lawsuits, such as this, may be legally maintained. Affirmatively, these Defendants allege that if the Plaintiffs are allowed to successfully maintain this action and their rights to the building permits are destroyed by judicial fiat and, as a result, their right to utilize the subject property in accordance with plans that were approved by all governmental authorities would, in effect, be depriving said Defendants of their property without due process of law and equal protection of the law in violation of their rights as guaranteed by the Constitution of tho State of Florida and of the United States. 12. The allegations of paragraph 22 aro denied. Affi.ramt£vol.y, those Defendants propose amendments to the plan for development au described in paragraph 5 above, which allegaLi.nsls: are by reference herein adopted. However, if tho !�M a • nail amendments err riot approved as par. of the development plan by all necessary authc,ritivn, avid t eft ndantn reserve the right to develop the project in arc urdance with t ha original plan as heretofore approved by ufl governmental authorities upon which building permits were duly, legally and regularly issued, and upon which these Defendants relied. These Defendants deny the allegations contained in paragraphs 24(a) (b) and (c) that the project in not a unitary building project, and that it will be constructed on several unplatted parcels of land. These Defendants further deny the allegations in said paragraph and sub -paragraphs that if the project is constructed in accordance with the I developer's present plans, it will be in violation of the City of Miami's zoning ordinance. 'These Defendants also state affirmatively that the plans on file comply with all ;1 of the requirements of the entire comprehensive zoning ordinance of the City of Miami and that no illegal variances from the provisions of said ordinances have been granted. All other remaining allegations in paragraph 24(a) (b) and (c) are denied. 13. With regard to the allegations contained in paragraph 28, these Defendants states these Defendants deny all of the allegations that the Defendant, CITY OF MIAMI, issued building permits in violation of its own ordinances. The opposite is true. The Defendant, CITY OP MIAMI, complied with all of its own Codes and ordinances in issuing building permits for Tract "A" of PAIR ISLE REVISED. These Defendants admit that the building project of the former owners, as above described, is a unitary development. All other allegations of paragraph 28 are dcniod. 14. With regard to the allegations ccsntaissc d in paragraph :30, tlioue DefenJAntu adores that - they admit that on 4 t r '1 • • • 9 Deeemhc'r 10, 1910, the Cit.. + t t mmi pion of t;hn Uet+ ndant: CM"Y 1,y Resolution No. 42062, granted the requc±tsted varianeg to permit lot_ coverage Of 66 . All outer allcgati.onsi of paragraph 30 and sub -paragraphs) are denied. 15. With regard to the allegations contained in paragraph 32, these. Defendants alleges they admit that the variance granted on the subject property is of no further force and effect. They deny that the parking structures will be built to a height in excess of 12 feet above the finished grade, and also deny the allegation that the lot coverage will be in excess of that permitted by Section 19(7) (a), Article 4, of the City of Miami zoning ordinance and further deny any violations of the City of Miami zoning ordinance have occurred with regard to the said property. All other allegations contained in paragraph 32, 32(1), 32(2), 32(3), 32(4) and 32(5) are denied. Affirmatively, these Defendants adopt by reference the allegations of paragraph 5 above. 16. With regard to the allegations contained in paragraph 35, these Defendants allege: that under the original plans that have been approved and which building permits were issued, said Defendants will be required to increase the height of the seawall around FAIR ISLE and will be required to construct a finished grade somewhat above the present grade of the island. These Defendants further admit that this will eliminate the need for variances. These Defendants affirmatively state that in allowing this action, there will be no violation of the requirements of the zoning ordinance. All other allegations of paragraph 35 are denied. Affirmatively, these Defendants adopt the language of p.ragraph 5 above. The a endment°, as described, will be in conformance with thu Defendant, CITY OL MIAMI'S, zoning ordinances, without requiring any variances. Additionally, the • • • • s trt.t►ent. grac of PAttt IrLr will nubst.anLiaii.y *main nerd i f said amrndment.0 arc approved. 17. With regard to the a1legat:innr contained In paragraph 38, these Defendants allege: these Defendants are without knowledge as to the all.ogatlnnn regarding separate ownership of various portions of rA]t ISLE REVISE©, and, therefore, deny same. These Defendants further deny that the condominium documents filed with the Clerk of the Circuit Court constitute a legal division of property requiring re -platting and further deny that such documents constitute an attempt to re -plat property without following legal platting requirements. All other allegations contained in paragraph 38 are denied. Affirmatively, the Final Judgment of Foreclosure (Exhibit A) moots Plaintiffs' contention as pled in paragraph 38. 18. The allegations of paragraph 39 are denied. 19. With regard to the allegations of paragraph 40, these Defendants alleges since the subject property (FAIR ISLE) was not subdivided, the allegations to that effect are specifically denied. These Defendants deny that re -platting is required. Therefore, Section 9, Article 4, of the City of Miami zoning ordinance is not applicable in this case; Affirmatively, these Defendants adopt the allegations of paragraph 5 above. AFFIRMATIVE DEFENSES AS TO COUNT I As and for their affirmative defenses to Count I of the Plaintiffs' Fourth Amended Complaint, these Defendants allege; A. That these Plaintiffs are barred from maintaining this action because they arc guilty of ladies. Upon the face of their (plodding, the Plaintiffs, GARDNER and R©UINY, claim ownership of real property in Dade County, Florida, for "... a • • number of yearn..." and they claim ownership and aiduney its real property "... directly abutting the building prtJcot aorot n the waterway..." As alleged owners and residents of property in the area in the immediate vicinity of the building project, and that: Tract; "A" of 1AIfl ISLE was zoned "R-5" since Juno 2, 1961, and that the Comprehensive zoning ordinance has been amended since dune 2, 1961, and the date of issuance of permits in 1971, they knew or they should have known that the former ownersn' plans were approved and that the building permits wee issued consequent thereon in 1971. Plaintiffs, GARDNER and DO11NNY, and the other. Plaintiffs in this cause by their mere presence in and around the said subject real property at all times material to this action knew or should have known that construction commenced upon the said property in 1971. Additionally, the "- plaintiffs knew or should have known by their mere presence in the subject area that these Defendants (except SOUTHEAST t'ZMST NATIONAL BANK OP M IAAMI, as Trustee) expended millions of dollars to fund construction upon the subject property, all in reliance upon the legality of the building permits issued by the Defendant, CITY OF MIAMI, and in purported compliance by the Defendant owners (former owners) with all of the rules and regulations of all governmental authorities, including the "it--5" zoning which was so zoned since June 2, 1961. When a governmental authority issues a building permit, a construction Lender, a title insurance company, building tradesmen and the immediate world have the right to rely and expend monies upon such reliance, on the subject property, that the building permits are legal and that all laws were observed which gave rise to the isnuance of said building permits. The saame is true when a municipal authority adopts; a zoning ordinance. Notwithstanding the foregoing, those Plaintiffs: remain d :silent, while these Defendants were expanding ' -10- • t • their n{eta find while the former owners were implenent;Ing thoix approved plans by commcneing construction upon their project and while these Defendants were fitndin'j that project ns hercinbefotra alleged. It was not until 1972, that the Plaintiffs claimed that their r.ightsa were being infringed upon and sought judicial intervention. this delay on the part of the Plaintiffs was untoward, protracted and deliberate, and if legally sanctioned, would work to the fiscal detriment of these Defendants, all of which precludes the Plaintiffs from obtaining the relief they seek. D. These plaintiffs lack standing to maintain this action. The building project was expressly authorized by Municipal legislation and, accordingly, the same can not be directly or collaterally attacked by these Plaintiffs or any other citizen. C. Tract "A" of FAIR ISLE REVISED has been zoned Ufl 5" High Density, Multiple Family, since Tune 2, 1961. D. The comprehensive zoning ordinance of the City of Miami has been amended between June 2, 1961, and the date of the issuance of the permits'in 1971. Said amendments continually place more stringent requirements on buildings by requiring more parking spaces per unit and more stringent landscaping requirements. E. The plaintiffs waived any rights that they might have had to attack, directly or collaterally, the comprehensive zoning ordinances of the City of Miami by waiting more than 10 years since the institution of the "R-5" zoning and only fixed their Complaint after building permits were issued for a project meting all of the requirements of the.comprehensive zoning ordinance of 1971. Therefore, said Plaintiffs waived their riaht:a, if any they had, and are cquitaidy cutupped from 4. i • • r • 1 • • • Cbmplain.inq at this late date oVcr the legal tieasy of the comprchennivc voning b::dinanc e end thn permits: that won issued in consequent. thereof. A8 TCl COUNT II PU4LIC NUIS4NCN For answer to Count It of the Plaintiffs' Fourth Amended Complaint, these Defendants allege: 20. With regard to allegations contained in paragraph 49,•thcc;e Defendants allege: these Defendants re -allege and incorporate their Answers, set forth above, to paragraphs 1 to 48 of the Plaintiffs' Fourth. Amended Complaint. The remaining allegations of paragraph 49 [and all sub -paragraphs (a) (b) (o) and •(d)) are denied. Affirmatively, these Defendants adopt by reference their allegations contained in paragraph 5 above. 21. With regard to the allegations contained in paragraph 50, these Defendants allege: these Defendants admit that they have not tendered to Plaintiffs any compensation, and affirmatively state that none is justified, legally or equitably. All remaining allegations of paragraph 50 are denied. 22. The allegations of paragraph 51(a) (I) (it) (b) (i) (ii) , (c) (I) (ii) , (d) (i) (ii) (£ii) are denied. AFFIRMATIVE DEFENSES TO COUNT II Said Defendants, as and for their affirmative defenses to Count II of the Plaintiffs' Fourth Amended Complaint, allege: A, Those Defendants allege that Defendant, SOUTHEAST rI3tST NATIONAL RANK OP MIAMI, as Trustee, acquired title) to the subject property from the Curl: of the Circuit Court of ©ado County, Plorids, as a result of a mortgage foreclosure sale -lZ- 4. 1 1 • • •• • 1 • • • wherein the legal interests of the Uo t t rcdatttu, tAiLt3OhT REY, MC. and At•Lf1CAN AhVXSoRY CORPOiwrtoN, in and to tho isaid property were extinguished. A copy of the Final Judgment of l'orecioreurr~ is appended au these Defendants' Lzhibit A. A copy of the Cer. hificatc of Title referred to is appended at 3,xhfbit B. The plans referred to -by tht plaintiffs in this lawsuit ware the plans of the former owners. Sy virtue of the Pinai. Judgment of ?orec10 sure and the Clerk's Certificate of Title, these Defendants (as the record title owner and as beneficial owners) have become the owners of the building permits undeT attack by the Plaintiffs in this action. Though the former developers (Defendants SAXLt3oAT KEY, INC. and AMER;ICAN ADVISORY CORPORATION) had approved plans (by all governmental authorities) and secured building permits consequent thereon, which plans and permits are now owned by these Defendants, legally and beneficially, and which plans and permits are legal in all respects, the Defendants, by these presents, apprise the court that they have amendments to the plans of the former owners on the drawing board which reflect a substantial reduction itt density of the development of FAIR ISLE. A copy of these fob teridiaents will be filed in this cause as soonas they are finalized. That the said Defendants will accompany the filing of the amendments together with a notice of filing, so that all interested parties in this action will be so advised. When the osnendthents are so finalized and filed herein, these Defendants will seek their approval as in required by all governmental authorities, and, if approved, will implement same. However, if the amendments, as described, are not approved, these Defendante reservo the right to proceed with the Mans, without .tits^ndmc nt . of the former owners which isro still legally existing asad now owned by t its Se Defendants. R. Thot those Plaintiffs are barred from maintaining et. 1 • • • • this: action because t.hoy nre guili:y of 1 aC ties. Upon'the face t r their pleading., the Plaintiffs, CAUDNlytt dnd DoHENy, claim ownership of real property in Dade County, rivrida, for ". a number of years ..." and they claim ownership end residency in real property "... directly abutting thcs building project across the waterway ..." as alleged owners and residents of property in the area and in the immediate vicinity of the building project (tract "A" of FAIR ISLE REVISED has bean • zoned "R-5" High Density, Multiple Family, since June 2, 1961, and that the comprehensive zoning ordinance has been amended since June 2, 1961, and the date of the issuance of the permits in 1971). They knew or should have known that the former owners* plans were approved and that the building permits were issued consequent thereon in 1971. Plaintiffs, GARDNER`t and DOHENY, and the other Plaintiffs in this cause by their meret . "ti presence in and around the said subject real property at all times material to this action knew or should have known that construction commenced upon the said property in 1971. Additionally, the plaintiffs knew er should have known by their mere presence in the subject area that these Defendants (except SOUTHEAST PIRST NATIONAL HANK OF MIAMI, as Trustee) expended millions of dollars to fund construction upon the subject property, all in reliance upon the legality of the building permits issued by the Defendant, CITY OF MIAMI, and in purported compliance by the Defendant owners{former owners) with all of the rules and regulations of all governnnental, authorities, including the •'it--5" zoning which was so zoned since June 2, 1961. When a governmental authority isa nes a building permit, a construction lender, a title insurance company, building tradesmen and the immediate world have the right to rely and cai►ond monies upon such reliance on the subject property, that the building permits are legal., And that all lawn waro obsorvod .14- • • • • • which gave rise to the 3asttance or the trait] bttLldit►g parcnito. The bawl lb true when a municipal authority adopta a Craning ordinance. Notwithstanding the foregoing, the plaintiffs remained silent, while these Defendants were expending thoiz monies and while the former owners wore implementing their approved plane by commencing conntructi.on upon their project and while these Defendants were funding that project as hereinbefore alleged. It was not until 1973 that the Plaintiff& claimed that their rights ware being infringed upon' and sought , judicial intervention. This delay on the part of the plaintiffs was untoward, protracted and deliberate and, if . sanctioned, would work to the great fiscal detriment of these Defendants if legally sanctioned. The Plaintiffs are, accordingly, guilty of laches, which defense is invoked as an affirmative defense by these Defendants, which must preclude, the Plaintiffs from obtaining the relief they seek. C. These Plaintiffs lack standing to maintain this action. The building project was expressly authorized by municipal legislation, and, accordingly, the same can not be, directly or collaterally,attacked by these 'Plaintiffs or any other citizen. D. 'tract "A" of FAIR ISLE REVISED has been zoned "R-5" high Density, Multa.ple Family, since June 2, 1961. E. The comprehensive zoning ordinance of the Cit; Miami has been amended between June 2, 1961, and the date of the issuance of the permits in 1971. Said amendments continually place more stringent requirements on buildings by requiring more parking spaces per unit and more utring©nt landscaping requirements. . F. The Plaintiffs waived any rights they might have had to attack, directly or collaterally, the comprehensive zoning 4, ordinance of the City of Miami by waiting more than 10 yoars since of v a 1 • the institution al, t:ht "it" " honing nnc1 only tiled U tr Complaint- otter building permits were issued tor project meeting all of the requirements; of the: comprehensive zoning ordinance of 1.971. Therefore, said Plaintiffs waive their right:t, if any they hard, and are equitably cgtoppcd from complaining at this late plate over the legal efficacy of the comprehensive zoning ordinance and the permits that wore issued consequent thereof. (91 These Plaintiffs Lack standing to maintain this action because they have failed to show that they haven sustained or will sustain special damages or injuries different in kind, and not merely in degree, from injury to the public, at large. Additionally, upon information and belief, the A Plaintiffs GARNER have moved their residency since the permits, aforedescribed, were issued. y (,. These Plaintiffs lack standing to maintain this action. The building project was expressly authorized by municipal legislation and, accordingly, the same can not be, directly or collaterally, attacked by these Plaintiffs or any other citizen. That to allow the Plaintiffs relief as prayed for would be, in effect, depriving said Defendants of the highest and best use of their property and would,, in fact, be tantamount to a confiscation of their property without due process of law and contrary to the Constitution of the State of Florida and the United States.. . I. That the effect of the relief that the Plaintiffs seek is to condemn and confiscate said Defendants' property without just compensation which is obnoxious and contrary to the laws of the State of Florida and to the Constitution of the United State and the State of Florida. the practical effect of the Filing of this lawsuit wan to reduce the market r41ts0 of mu Ism in A suuutuntiai SUw. and to aauao said 1 • • t 1 Deil-ndants substantial financial injury. 4* That thtlne Defendants know of h0 violation of any exit lawn with regard to the coning and/or to the building permits and state that if any violation is made to appear to which they were unwillingly made a party, they will. take all appropriate action to come within complete compliance with the law. AS TO nwn_ BUNTS / AND II 23. The allegations in all paragraphs of both Counts ,F and X/ not heretofore admitted are denied. wnEnnron, said befendants* having fully and completely • answered the Plaintiffs' Fourth Amended Complaint, pray that' the same be dismissed with prejudice to and at the costs of the 4 Plaintiffs. WE HEREBY CERTIPY that a true copy of the foregoing was mailed on this 5th day of November, 1975, to the addressees per the appended Nailing List. SNYDER, YOUNG, STERN, BARRETT & TANNENBAUM, P.A. Attorneys for Defendants, CABOT, CABOT & FORBES LAND TRUST (CCP); HOSPITAL MORTGAGE GROUP (HMG); JOIN C. SPENCER, VIRGINIA Q. BEVERLY, WILLIAM A. VAN NORTWICK, JR., as Trustees for FIDELITY MORTGAGE INVESTORS (FMI); and SOUTHEAST FIRST NATIONAL DANK OP MIAMI, AS TRUSTEE 17071 West Dixie Highway North Miami Beach, Florida 33160 Teleph ne No. 945-1851. ny 41.6_ U. TON YbaNG -17- • • i 4' i• 1 1 1 • 1 • NAI31I'l4V MAT PAULL 4 THOMSON Attorneys fur Plaintiffs 1300 S. H. First National hank building ;Miami, Florida 33131 -andmi MIMING 6 1il t MAN Attorneys for Plaintiffs f 20 Ingraham Building Miami, Florida 33131 JOSEPH P. AVERIL♦L, ESQ. Attorney for Plaintiff, DAVID A. DOHENY 1500 bade Federal building 21 N. E. First Avenue Miami, Florida 33131 JOHN S. LLOYD, City Attorney and MICHIEL E. ANDERSON, Assistant City Attorney Attorneys for Defendant, THE CITY Or MIAMI, FLORIDA 65 S. W. First Street Miami, Florida 33130 • i•• •4144.104•44••••••••••••••=4.1••• 1‘....rit !it:1 tLit. 4 r 9 t1:-: 1:1:1/4r, .mitrilciritton 1.11.VPit.ON t %ton C. Nt.,t-:Ntiati, VittotNth Q. ktrul WILLIAM i. VAN NO17.1fItt:,tttrrwikees MOUTtAC.;Z 11A.ivrs.Torts, t Hatlunulatuatth jut1tt 'runt. top, CBOT t•Ott.VS LAND TRUST, a Vaasacl-tunoLtn DUsinewi Trush, and CoSPITAL NORTGAGU CROW, it 2“totiechusehtti BUsine%u , Trust, . Plaintifft. vs. . .. CITY. RAT/on:vr. }aim or Amu. . ,,i • litrtifIttti unt1ct Ulla T:ttust No. S042-9; SAILSOAT MY. a eorporatioa: nunmyi GOLCZZRO: •.w.v.racAlt iu3VISORY e01111.• a . :- . . •.'., COIVOratiOnt 111`1/2.W#IOND INIVR--1- . .'.. *I • • • •‘ :1:0,1=0. INC., a corporationf..: t ....; . s .. . .. SASI\JZTT 1;NG.T=RINO,.. INC.„.'a: „• ' • • • ......4 •••• • !. • CotpOrattiOrt; ILATC51311,1. ZIECI=1,.*: . , • .. • .fr. ••• • : : ' • '• • . 1 1 . • emir. t.13. 7445348 GUNN AtI) ASSOCIATP.S; .a Gartstra3.- Partnership; BLISS 4 NTITIthro•s. - • corporation; CONTINZN.-:••• VAL NOP.TO.A.CZ INVZSTORS. a • • .14assacitt=eihts Busittess•Trust •• SAILBOAT IC= CONDOMINIMI •••.• •• • •• • ty . • • • . ; • • • • 4 • • . t •• tt • • • t :•••• • •• • • • • • • '4 • •• •• • •t .• • • • • • • • • • • • ASSOCIATIOZ4 INC., •a corpora-- • . t . • .. • • . • ? tion not for prof4; SAILBOAT KEY .... • NANAGEL,L13T; INC., a corpqration; It • .., . • . TES CLUB ON sA.Traont IMY, INC.,. t. ••••• .•t• at corporation; tiAtraic.-4.• r•• as ..• . . . ... -.. . HAY011 OP TE. CITY OF kiI,VII,• . I ... .• • •• • •• 4 • 4 .• • .• • • • • . • • • . INC., a corporationr ARIZIN* :.••• •.: •• '-'st4. .•• : • ' .* CONSTMCTION CO., • INC., .. a COrporas. — •: 11, • .. . • • - . .:. • * 44.• :. tLon. • . • ..• - ...•..; .t.......t,t.....::....4....,...,r...r..... ••,......;., .••.. .. •.1- • • • • . • • a •-• • • FLORIDA; AVALON COMT.Itt.g..x.COIN.T, •1. t • 6, • , . • • •••• •. •• t* • • :t •• • .2- •- •••• • ;•l• 4.. • • •• • •• • • ; • • •4:•.•4.• .%.,‘t's;••• • 44.... D••• e••• f•e. •r•d•• ••a"•• t='••••.•••• ••• 7 •• •,t *".• •••1•• • • •• • • • • ?"••••. • •* ••I.•'t0 •• ••r• •.. • •; •••• • ••• • •• • • . . ; • •••• .4 t••••el" • • • a, . ••4 •••,4*.%;* • • .2 • :.•;•,14.r?, •• . • c.:14••• • • •.! •••• :•;•";4.:1:-:.•4•• •• • • 14. *rt. :•••;:..:1 • •A • • l• • • •• • ****.«; **••▪ ••••••"•••?7'.•‘.'• • e • •*.T. •• "•!••••• • • • • 7 • " • 4 • • .• , • . a 4 • • • 4 lip 6 • 4 • • • . a • , • • 4 46 • 741 * • • • ••• • . 4 . - • • • • • 6.6 • 4.110, ;•. • • • • „ • • • • . . 'A . • . . •••• • • • ••• . . es • • • • • . • • . • • AN" • • ' 4.7 ; r..r1474AL....a1MCI-Errr FORtr.CrOS . • • • • i*tf;s• *. • : 140 ••,,••• • • • tS• • *1 % • ••• • ".*:. • .1 04:4*, • *•;4; • •• ' • • .." All" 4140. 4i !I • W- Pa" • * • • • • • •• • • .1 • . s • • • • -•!:. • • 4••;‘,1:••;i:•:? 't•'••• r. • •"4 •/•• el. • 1P,I$44944° *Vt.•9" • • • • ; 41'4;44. • •• • • % . • 4.%,. • • • :4.. . • • •^4•; 1.• • . • •• • • *," • • . r '11 • • ..This action, was• -. tried before* thp• Court. Ott the. evidencek. - • •• .4•A ,• t • • . ••• • • • • • • • • • • •.••••••:••;, • • • ••• • • t • • • 1 • . •. . presented . • 's 4* • • • ' ;.• • • • • 4 • X$ AMIUDCED that: • •• • • • • • • • • • • 3.. That 130f.l.andant, surson KT. • xr.re- and DUATON' • • • C-orz)11-31.0'ci ct.i.ceptimui to the Special. Master's report be, ettd the t•;:t!ni. I.iy, cwtxru Ica and them is no finding of mut), as against plaintiff (MAPP' • 4.41,4e4.,•• •• tibor r'e -6 • e1.4 ri•••:•44- 4-0q41••• ' • . . •"10-• •.,•• 00. ‘0•• 0••41•1,4••4• ••••••••••4 4•••••• ••••414 • • t • • ,- , • , • • • , 6. • • •• • • " 1 ' • .1" ••• "tle .4" • 4, • • • • • . • • e• 4• • • * . . ; •t• • l't..(tri...4•Ettivt:it th.t.;:,:ichu,stioszt., irtttAtt, cAtjor. a rGetC13 LA;s0 TRU2T, a Malpqachuselts BuJinoss ead ROUTIAL isqtyyr•cw,,G0 CHOW. ft ntltir.3achttwitl Truut, are Mgt* ttiLuagt Donavi (0,000,0b0•00) as principal, Two Mt1lttntVwettlay.rou,e • incusaad One Hundred Forty -Pout and 40/100 bollars ($2.024,144.40) inttreqt to tht the of this judgment, $350 000 00. mar total surd ok $iat4Eti83,4.A.L.LMAF PlaintifLa' attorneys fees, with $.7„044.-041(eneourt watts naw:tamml, $.75 oD.o.st10 for neetiver'U Eaa • $275JQMspii. Master's fee, under the notes and mortgage sued on in this action. Inking& al % • * 1 ' a 3. The Plaintiffs bola a lien for the total suet • superior to all right:J. claims, ltens„.• intererft. eitcumbrandetS, • ana street easements, equItles.-: or estates of tha Defeziaantsii . • •. • CITY NATIODTAL )3AA.NT1(:OF MIAM.t.'iirustee under Lana Trust To.. 5042-9: raid .. • • SAILBOAT VEY. INC..a corporation; BURTON GOLDBERG; AmEnicasrADVISORT CORP., a corporation; nAYMOlp iNTEMATIONAL,.7.11C., a eorporati9n;:0 . • • SASNETT ENGINEERING, INC.'. a' corporation; trATC=11.#.iziarirat.. GMT AND ASSOCIATES, a General Partnerdhip; Bins & NYITRAT„ INC., a corpora-- . •• . . , . .. • . • • . tion; CONTINENTAL, MORTGAGE INVESTORS, a Massachusetts Busimmts irust; • • % . . SAXLBOAT VEY CONDOMINIUM ASSOCIATXO'N.,.. =C., a. corporation. not for • • • • • ...,* - . profit: SAILBOAT EEY ilANAGMCI4r,,* XNC..i.:12i. coxpore.tionr TEE ctit;13 ON . • . : •....:::. -.!• -:!•• : • . - . SAILBOAT REY. IN., a corporation IlAURICZ EZRIllt, as 11AY011:9P TIM ... •*.r: . .. • 4 • • • ... , • .4., •••• • • • • • 6 •C ' • ,.• • . .... • j • 1.... '... • • • ••••• .• •• • : 4 . • .. • CITY . OF.-mrzymr;:'imoitirm;-.....7WALON CONSTPITCT±Obre-,XNC..,. a corporation:- • and...•'. ,..••..:• - ..,;• •••• •..•. . .„1....! • %-„,r.:.„-t.. .• . ...r.;..4 . - -..4.04,.. ; .:.o‘s.-: .. • -... .. 3 • .! :..,.. - .,::::::...".„ .4 ••••, .• :••• ),... ! .. tt:t.;...,,Ifi.". • - . . - .. . -,.!.." Amatr-CONSTRIICTIOa ca.,..,,rac,::,. a .corPotation: and a..13- Persitanifitrt..;%7•_ . • .. , ..7,..i. , .,.....; ....• ,,r1. ...".: .....f : - ........ ..-• :•...*••.,.:••:. - . • , : • '1 4•* 4. It.' • • 117t7f.;14 • ' ,....,,,... • . . , . .• ..-.10,.?, il,.,....... . a • . • . - • • or corporations clatzing..by. throug'hfor'-vader the said Defendants, ,•'...::' .. . :. . •t, • .. - • — • • • •... .• •-• • or any of thention the following described property itt Dada Cotutty, .• Florid 3: Parcel 1; .••• • • • • Tract A, according to the Revised Plat of FUR: ISLE, according to the Plat thereof recorded itt Plat: Book 34, at Page 70, of the Public Records of Dade County, Florida. • • • • • • "V- • "'" ,•• - J..• r tr•talraWir • • • • ••• •4. • I • 61-• •.• •••1/6•66111r.fl. ' • •••• • ”111••••,•,,,I r ••11••••••••• 4•11,,6116. ' 11•166•1111rIlf••••6•'• ••••••••••••• • • . tr). Lett. t,ciitttty, t'lntitf t. 41inCk 1, 1At%.01.16.d.vatt i �.i . Ot t:Cl tiftt 01. t 1: 1t: Loot a`.et`e rt1 t itt ]. 0, n f:i::2 C'� �t i.i.G Iticattla of O t- y • $i • • Parcel t but `i, tO Iti.Woun 1111Yk'.-'.ON'Vi, CnC'T'roln 'rta'd, eCardi e; to the Pint t:i ereb t; recotd1 d J.rt Hal Book 4, at rage 120, of the Public WA:att % or Dade County, Florida, Luau olt! tav'th•wtjtcrly 10 LeeL- i.lt_retit.. i+arcri : A perpetual casement !er right of tray fat Imidge te— cdnetz� tion purposes, it and to the tollawing described %a, in. Dade County, Fluridat Commencing at the Southeast .corner ©f the KS 1/4 of the Si 1/4 or Section 15, Township 54 South, liartg r 41 mast, run North Of: Ob DO' 42" Nast o di ,lance of 33.57 feet to a point: oat intersection with the city monument lfns og South payshore Drive; thence runt South 63' 14' 16" West along said monument line a distance of G25.30 feet to a point of intersection with the city monument line of Vair isle Stroet;' thence run South 26° 43.' 25" East along said manurnant: line of rair Isle Street and its prolongation, a distance of 992.47 feet to the Westerly bullhead 1b.ta of Biscayne Bay; thence rtni South 63° 3 Q' 25" hest ,hlong said Westerly bull:head Line, e. distance of 7.50 feet to the Point of Beginning or a 25 feet easement, tha *enter lima of .which is describedas follows: Parcel. 5: • Prom said Point: oi Beginning,' run Louth 26° 41* 25" East distance of 224;68 feet to a point of curve. said curve having a radius of 790.29 feet and a central. angle of 31° 56' .35"; thence along said curve to the left for on arc distance of 440.59 feet to a point of tangency; thence* run Southeasterly along the tangent to said curve, South 58° 38' Last, a. distance of 50.25 feet to a point of intersection with the Westerly bulkhead lime of Pair Isles, said bull head litre being the Westerly line of Pair Isle, as shown on "Revised Plat of Fair Isle" recorded in plat Book 34, .at Page: 70, of the Public Records of Dade County. Florida; the above all situated anc3 located in Biscayne . Bay, Dade County, . Florida, in Sections 15, 22 and 23, Township 54 South, Range 43. Last. , • . • A perpetual 'easement for right of • way for bridge -construc— tion purposes, in • and to the following describe& lam in .• Dade County-,_ Florida; . • .: , . .. -.• •• _ A parcel.• of .sovereignty. land...in Biscayne Bay- abutting : . Section •.15,. Tcwnshin 54• Soufii .,.Range 43. East, • Saae Colon y,.••:,. • PIorida . being• described• gas:•4ti parcel, of land,. _ 10 feet i.n•r;: width, .lying within. 5 feet:••:each side of a line .'detscribed ...:, : as follows:- . Commence at the Southeast corner •of the NE 3/4 of SE 2/4 of said Section 15; thence North 0° 00' 42" East 33.,57 feet; thence South 63" 1.4' 1.6" fist 625.30 feet; thence South 26" 443.' 25" East 992.47 meet; thence ?feral 63° 18' 25" East 10 feet to the point of beginrsing; thence South • 26" 41' 25" last 224.6a foot to the point of curvature of a curve cancavc Northeasterly having a radium of 772.79 feet:; t3aancc Southeasterly 430.04 face: along the are of naic1 curve through a central angle of 31" 56' 35" to the point, of: tang.:icy; t;lienoe South 5u" 38' 00" Last 50.25 Ec•et to Vito W5i:ae.y Lets. of rai-r Tale, according to plat reeord(11 in Plat :s ca)c 34, page '10, of the public utzteorda,4. o1 node County, rlor,i.da.. ( I1 !Ap .N..t • !::tt Plak eutor4ItIR oil mat, tlti!reol, htf.covaid in PlAt nwlIt 0, Powa L20; lit• 11.9r.:artti 0! 1i.itkCtitittty • 0.134 I ant 9 • Piutt% 2 tt 11m:Incled Plat of rAT.10W21.1. iiteodLnrj to the Pl.ti thcrcor, rtwardod itt Plat: nuol4 8# d Lao, titLilt! Lail it Records tok bade VounLy, rlocida. Pereel th tot 17, 11100.4 3, of Amended Plat ot rpaltrimato aucordin to tIvi Plak thereot, recorded in 'htt Book 0, Pogo po, et the Public Records of Dade county, norida. Together tdth all improvements. appurtenances, furniture, fixturen, machines, rents, profits and/cr other peruunal property located upon or attsdhed tO oc made a part o any or all of.the n parcels of real. property described :above; and together with any and all building pernits, including, but not limited .to, building permits, No. 72-13134 No. 73-2984, No. 73-2985, and No. 73-6132# for Tract A Mtn Mt: REVISED (34-70); 'and/or • licenses to build or construct improvements upon the mortgaged premises Issued by any municipal, state or federal governing or administrative authority. subject only to the • ' • final disposition of that certain appeal pending .• 4 in the Third District Court of Appeal of: Merida .. bearing case No.:.75-2G8, which it: an appeal from . rinal Order of Dismissal entered by the Circuit Court of Dade County. rlorida, on December 9, • • • 1974, Case No. 74-13977, wherein the City of Miami, Plorida... a municipal corporation, is the Petitioner. • and Burton Goldberg, et al., are Respondents. • ,,••:‘• 4. Xf the total sum with interest at the rate prescribed.' law and all costs of this action accrui• ng subsequent to this by • Judgment aro not paid within three days from this date, that CLark . . • of this Court shill sell the property at a public sale on .... /a ••••., 45 * 1975,*between 11:60 A.M. and 2:00.P.M. . . .• . .. . ••• . • •.. .••• to the*highest bidder for cash, except as set forth b.ereinatter. ••••..,. . ' :. at thesouth doo= of:the-courthouse in Dade County. Florida., fxr. •• . • • •.•?••q:i..•-b.,•••••• , •... -• . • .k.i'• accordanCe ‘w•ith:titc7tion. 45.031, '•• Florida -,Staintes . • . 4.t..;,..,::.„ „..• ••. ..: „.. „, • •••••• .. „ . ' r • •••.••...... 1. *c• ••; . . 41,1140 Fe:. 5..-.: Plaintiffs7s1all•zadvance• all::subsequent• costs of .thiar•••• "•:"..... •.• •,. • . Tt,...) . . • ' - • .:• I., : .. . • • * .: :.4:i • . • • c • 1 • • • • . . . . • . •• . & .•••• •1• 1 '.. • ' • • • • ' • • ** ? 3 • ::• o ••••. 7,* i action a.nd ab a 11 be reiraniXioed for ' t .heMPy.theMi;t4CLf.ti%4:: nt•; .* . . .. .: . . . . • :, .•• : . 1. • :.. .• •t "..*. Plaiiffs are not the purchaser of the•property at this silo. •..• ..• 4 • • . •T • . • ' • • 44: •:* • * • • • • ✓ trt1 7 t. • • If the Plaintitto aro the purdhasers, the Clerk Shall credit Plaintiffs' bid with the total sum with interest and costs accruing subsequent to this Judgment or such part of it as is necessary* to p‘ly the bid in full. G. on filing Cite Certificate of Title, the Clerk shut/. • • • • • - . • 4 ••••e• - •••••••••••• • • • fe,R^ilt7111VPIR. V 0 144 ►1 ,. 1 1 A . .1:1 -.tom i r # :7. ai eta .1f:i•a; 1 1�' fl �•%f f+t; f rnt, tlf t:11►. t titH; tccond, docualemmr, R►tartn:i ►tti:'i- s:*c1 to ihri CetttficAtt; third. the tt!'!•Aver't teat retirth, bpecial II:Aater's feu; titt.h. akte rtt2ya'. Vise birth, the to to ii Kura due Plaintiffs plug i.atrest at the rate T: e. se:: i.bed by low from this date to the elate of this toilet and by rotu.:hing any amount: remaining pending the. further Order of thin s Court. 7. On filing tilt! Certificate of Title, the Defendants' end ell person:.; claiming under or against them stince the filing Of the Notice of Lis Penderis are foreclosed of a1L estate Or claim .n the property and the purchaser at the telex shall, be het into • • possession of the property. Further, the Declaration of• t + Condominium filed by the CITY NATIONAL DA NN OE' MI,A IX under Lars Trust No. 5042-9 end the easements and leases granted therein be, and the name is hereby, '. deC1•sed null in void. • . 8. .7urisdiction of this action is retained to. enter.. •.•• ♦• further Orders as are proper, including, without limitation, .• writs of assistance, deficiency judgments,• judgments on guarantees,. and Orders . relative to the distribution of any funds that may . . • be created'for the benefit of the junior lienors or any of the • •• other parties to. this cause. The Court further reserves• .. • jurisdiction .to consider and rule upon .the breach of contract asserted by, the Defendant, =au CONSTRUCTION" CO., 1DSC., against • the Plaintiffs; however:** the Court again. notes specifica3.ly-that• , the lien of • the is amatr CONSTa cTYON CO . , Xl'C, , free and clear of any claims • �•+r s:i .� �L. superior:. to that of the Defe�nc z nt, •. , .• ,, • s -and that. the property will. besold of the 'D+a fondants. The Cottrt:'• . • _ .•. •t • further reserves ;jurisdiction to adjudicate the junior lie noz s' • • •+, kow - - • • st ••, - claims in accordance with their stipulation read into the record 4•"• +'+any 3, 3.975, which stipulation the Court has ratified. 1ttnim this , 17ih „-day of June, 1975, at Masai, Florida, by MI1.T+t'N_A. F111i7DMAJV CX1LC 1T 40100 C4. cif;*�; trtttstit:nc�1 Coun:+=' 9 1 iltnt,i C. tint::irt:tt, VtttGINIA Q. flLVl tt? and WIWI A. VAN tEt,,:1 ct1CK, Jtt. , no Trunt:rc.s tatty Fttjr:t.fT-Y WATGMd INVESTORS, r► fllW:atirtttyrttat'�u►�tn �u }TItt:tt, (: OT,, t;AbOT' i C oittIL3 1. \' t) TRUST. RUST, n l'i.v{.tittehtmetta tau ,tttemt Trttttt, next HOSPITAL tioitT.'C►At CROUP.) n ttiswitl%'t etas tusivess Trust Plaintiffs ) ofs- CITY ttATtONAL DANK OF t•tthttt, ) Tt,tstte :mitt- Land Trust No. 5042.9; et nl. Defendant a ) ) •; i ` P.Mt/ fli tfit'Mt V..MVIT#Nti1 Jtt1 ftctAt:, talO:1'1t1• ttl ht, fn11M Il4 AND t #flt t)Alftt t:MINTY CIVII. AMON Nil,_ CTitttritAtt blt me ttIAFfE t 45 • THE UNDFtt5IGNt D CLERK of the Court fortifies that he execrated and filed a Certificate of Sale in this action oat. _ ,_ .JUIN 18t h __ _ y_, 19....�.� .... for the property described herein and that no objections to the sale have been filed within the ttmeallowedfor filing objections. The following property in Dade County, Florida: Description of property attached hereto: '. • •.. was sold to: SOUTUKAST FIRST NATIONAL DANK OF MMAN1, a National Banking Association. as Trustee, under Trust Agreement dated the 25th day of July 1975, and known as Trust No. 9-79121, c/u Snyder, Young. Stern, Barrett b Tannenbaum, P.A., 17071 West Dixie Highway. North Zleai Beach, Florida 33160. WITNESS any hand and the Seal of the Court ;7:i11::i`. 52 KICIIAttl) P. MINKS; Cctk C'3- . y�tl��uiy'L CT. Gt. SEAL. • 4401„ i.'}1 11%+4 • IT a • s Ss. r • , ,� ,r 4sttit:t:t!1. I.. 'J�f rf::I. A, r_tt•f:CiI 11t1�1 nert,rtt .i tt►1 to l.ho t'j tit t'4tcr 10, et 1ttt, rlfr.ttl1 Parcel 21 r l:t~ tI1� 1'f!v .!i?rt1 Pint o t. 1.iror-srerl- tt!Ctyt tir:cl f.tt Public flecords ut flnde • • .+ Mtn tt In . t+i.cr'II Bee 36. 1105et,lc1trt_ over t:hr t4otIIiiorl.y 25 feet tquaro fronting on Oiscctytrn Bay, at tot: 17, itloc:k 3, anion ed Plat oe PAlhflAVr t•l, according to the Plat thereof recorded in Plat. Dt,oit El, at Page 20, of the Public Records o5 Dada County, rlaridit. Parcel 31 Lot 6, of KT.At ttt tt M1t;CitoU'J's, SVCIIMI two, according to the Plat ihernut recorded in Plat Hook 4, , of Page 196, of the public . hecords of Dade County, Florida. less the ' Northwesterly 10 feet thereof. Parcel 4' \;pet;pOt:ual easement for right of way for bridge construe.. tion purposes, in and to the following described land in ,Dade County, rlorida t • Commencing at the .Southeast corner of the NE 1./4 of the SE 1/4 of .Section 15, Township 54 South, Mange 41 Cast, run North of 0° 00' 42" Last a distance of 33.57 feet to a point of intersection with the city monument line of . South Oaf►shore Drive; thence run South 63° 14' 16"•West along said monument line a distance of 625.30 feet to a .point of intersection with the c.Lty monument line of Pair Isle Street; thence run South 2G° 41' 25" East along said 'monument line of Fair Isle Street and its prolongation,• distance of 992.47 feat to the Westerly bulkhead 1Lna of Biscayne Bay; thence run South 63° 18' 25" West glong said Westerly bulkhead line. a distance of 7.50 feetto the paint of Beginning of a 25 feet easement, the center line of which is describod,as follows: • From said Point of Beginning. run South 26° 41' 25" East a distance of 224.68 feet to a point of curve, said curve having a radius of 790.29 feet: and a central angle of 31° 56' 35"; thence along said curve to the left for an arc distance of 440.59 felt to a point of tangency; thence run•Southeasterlyalong the tangent to said curve. South 58° 38' East, a distance of 50.25 feet to a point of intersection with the Westerly bulkhead line of Fair Isle, said bulkhead Line being the Westerly litte of Fair Isle, as shown on "Revised Plat of Fair Isle" recorded in Plat Book 34, at Page 70, of the Public Records of Dade County, Florida; the above all situated and located in Biscayne Bay, Dade County, Florida, in Sections 15, 22 and 23, Township 54 South, Mange 41 East. ' Parcel. St h perpetual easement fox right or .way for bridge construc— tion purpose, in and to the following described land in Dade County, Florida: parcel of sovereignty Land in Biscayne Ray Abutting Section 15, 'Township 54 South, Range 41 Gast, Dada County, Florida. being described as a parcel of land, 10 foot in width, lying within 5 facet each side of a line described as follows; Com:now:LI at: the southeast corner of. the NE LAf SC 1/4 of t,u i d Noce ion 1'.,; thence North Q° 00' 42" gait 33.57 feet.; (hence South 63'" 14' 16" West 62' . 30 feet; thence'!" Suut lc '4'' 41' 2:," Cant 'J9?..47 feet; thence North 0° 1a' 25" gio.t: 10 feet = to the point of i'egilnliuy; thence* Satoh StG" 41' P.S" Caul: 724.68 feet to the point of curvature of a utti-vo c•c,ncavc l ortlic:. t.1 '1-1y havLtiq ;s radturs of 772.79 tc+et p lilt'ntx' Southeasterly 430.84 [tic t clung the aru of uaiice Zo1'vi' llitcutc,1ll a L!d'liir.11 ©t 31" SG' 35° 1.40 t11Q Iioi a t 01. 1 :ala,_1a'lal'y; t:ht"IitN" Notate Sill" AP 00" $ s' t 50.2i.: Ievi l (' 1 11r. t'!i'q;t c'1.1t► 1 hitt /If 1'',li r 1fi14'. iiticord1nq to plat 10+•,4441''41 ill Plat moat. �t1, cat . Cho Pu1�1.io 16►3i' ttiji �a i��•;ar '"•+'Iris 1 s 1'I'ii"1tt:1. • it ' • • , • ' i r , • i ...a + • • • • • 1 ti } i Parcel G: Lot 8, .Mock 2, of Amos:tied Plat of FA/MAVEN. according to the Plat: thereof, tccordcci itt Plat'Rook 8. Page 120. of the: Public Records of. bade County. Florida. 4. Parcel 71 Lot 9, flock 2, of ,Amended Plat of PAIIIHAVSN, accoz in to the Platt thereof, recorded in Plat 'book 8, Paga'` 1.20. of the Public .Records of nude County, f'lorida. Parcel 8: Lot 17, nlock 3.. of Amended Plat of PAIRHAVEN. according to••thc Plat thereof, recorded in Plat Rook 8, Page •1.20, of the Public Records of Dade County. Florida. - Together with all improvements, appurtenances. furniture. fixtures, machines, rents, profits and/or other personal property located upon or attached to or .:• •' .ft made a part of any of 'all of the 8 parcels of real' property described above; and together with any and all building permits, including, but not limited to, building permits, . No. 72-131.31, No. 73-2984, No. 73-2985, and No..73-6132, for 'tract A MIR ISLE IU VIS3:D (34-70) = and/or licenses to build or construct improvements upon the mortgaged premises issued by any municipal. state or federal governing or • administrative authority,?subject only to the final disposition of that certain appeal pending in the Third District count of i ppeal of Florida bearing Case No. 75-268, which is an appeal from a Final order of Dismissal entered by the Circuit Court of Dade County, Florida, on December 9, ' 1974, Case No. 74-13977, wherein the City of Miami, Florida, a municipal . corporation. is thePetitioner. and Burton Goldberg, et al... are Respondents. .;_ • . •. • a • iTY`ti,r ' ./W14 ir, 75-ii IRC st 1 IN 'TTIM CIRCUIT 'r Cntttt'r Or 'Mtt 1 t.1V:N' tt JUDICIAL CIRCUIT, IN AND t'oit DAht CoU►1TY, I'f0t%tDA. cT vri OF FLORIDA EX REL. FRANg C. GARDNER and I`MNCEs ;. CAt: LWF:ft TOPICAL AUt)Ut ON SOCIETY, INC.; TIGEJt'i'Att. ASSoCIATIttN, INC.; WiSNCitt i1OnEOWNeu 5' ASSOCIATION, /NC. ; COCONUT GROVE CIVIC Chun, anti 1"P= C. GARDNER and PRANCES G. GARDNER, and DAVID A. DOHENY, Plaintiffs, t t Vs. SAILBOAT KEY, INC. and AMER ICAN ADVISORY CORPORATION, d/b/a Sailboat Key Developers; ARKIN CONSTRUCTION COMPANY, INC.; THE CITY OP fiMIA:MI, FLORIDA; SAILBOAT KEY CONDOMINIUM ASSOCIA- TION, INC., a corporation not for profit; SAILBOAT KEY MANAGEMENT INC.; THE CLUB ON SAILBOAT KEY, INC.; JOHN C. SPENCER, VIRGINIA Q. BEVERLY and WILLIAM A. VAN NORT- WICK, JR. , as Trustees for FIDELITY MORTGAGE INVESTORS, a Massachusetts Business Trust; CABOT, CABOT & FORBES LAND TRUST, a Massachusetts Business Trust; and HOSPITAL MORTGAGE GROUP, a Massachusetts Business Trust, t t t t Defendants. MOTION TO DISMISS Genera Jurisdiction Division CASE NO. 73-6449 RESPONSIVE PLEADING OF AR.KIN CONSTRUCTION COMPANY, INC. The Defendant, ARKIN CONSTRUCTION COMPANY, INC., moves to dismiss TROPICAL AUDUBON SOCIETY, INC.; TIGERTAIL ASSOCIATION, INC.; UAYSHORE HOMEOWNERS' ASSOCIATION, INC.; and COCO:►uT GROVE CIVIC CLUB as parties Plaintiff in this suit and/or dismiss t:hc Plaintiffs' Fourth Amc+ndcd Complaint upon thr (Round th.;tthe said Plaintiffs aro without standing to snointain an acCiu» (Count II of Plaintiffs' Complaint) which f iat 4000011 _A 404141$ WVt$ , PA 11(1l;JN t!rom NACU t lrla3 it t'tyjt 1ti ahh ail .ttr.' l vic,1.atitni or i, is r.xi.nt.itig municipal t)rc'ti t1ianev. btrit x rel. t o rdno t vrta ,;jai llioat Key, 29% SO. 2c1 On; 5t:ate t» :re.l. _Cottdiit±r Vie. sailboat; i:ey, 30G So. 2d 610. II these Plaintiff Associations have tto legal standing to maintain an action to enjoin .nn alleged violation of a municipal ordinance, then they have no standing to seek a declaration as to the validity of a municipal ordinance or building permits issued tht'reuncler or their rights thereunder (Count 1 of tho Plaintiffs' Complaint) . Moreover, neither of these Plaintiff Associations is a ''person" an provided in Florida Statute S6.021 which empowers the Court to grant declaratory relief in the circumstances as pled. Further, the Fourth Amended Complaint fails to state a cause of action against this Defendant on the ground that this Defendant is merely a licensed building contractor who was issued the building permits pursuant to the municipal ordinance of the Defendant City, and that said Defendant has no other proprietary interest in and to the real property which is the subject matter of Plaintiffs' lawsuit. That as a natter of law, though the building permits were issued to the building contractor pursuant to municipal ordinance, the owners of the permits and all of the rights that flow therefrom are the owners of the land, to wits The Defendant, SOUTHEAST FIRST NATIONAL BANK CF MIAMI, as Trustee, as the legal owner, and the Defendants, CABOT, CAAOT & FORBES LAND TRMST (CCP) ; HOSPITAL MORTGAGE GROUP (IHMG) ; and JOIiN C. SPENCER, VIRGINIA Q. BEVERT.Y, and WILLIAM A. VAN NORTWICK, JR., as Trustees for FIDELITY MORTGAGE INVESTORS (F4fl , as equitable owners. WliI:1t1:FO :, the said Defendant moves for a dismissal. ANSW) R For iu Nwer to the Plaintiffs ruurt.h Amended complaint -2- 1 • tho nofr�;,tlant., AUtrlt4 toczttt eT hN CUMPAt4Y, it4C. , t4tdtcrl t 0 "'O COUNT 1 1. The allegations in paragraphs 1, 3, 4, 11, 13, 18, 20, 21, 21(i) (ii), 21A, 23(a) (b) (c) (tl), 25, 25(a) (b) (c) (d) (t) , 26, 27, 27 (n) (b) , 29, 31, 34, 36, 37, 41, 42, 42(a) (i), 42(b) ► 43, 43(i) (b), 44, 46, 47 and 46 (and subsections) are cleniccl. 2. Said Defendant denies that this is a proper action for declaratory judgment under Florida Statute 86, and denies that the Plaintiffs have a standing to properly maintain this action. Said Defendant denies the other factual allegations contained in paragraph 2 (a) (b) (c) • 3. The said Defendant is without knowledge as to the allegations in paragraphs 5, 6, 7, 8 and 33 and, therefore, they are denied. 4. The allegations in paragraphs 14 and 15 are admitted. 5. That this Defendant admits that the Defendants, SAILBOAT KEY, INC. and AMERICAN ADVISORY CORPORATION, are Florida corporations with their principal offices in Miami, and that said corporations have heretofore engaged in construction activities of buildings on that property now known as AIR ISLE. It admits that the building project was to be constructed in accordance with the plans for which the building permits were issued by the licensing authority. All other allegations of paragraph 9 aro denied. Affirmati.ve►ly, the building permits are now owned by the owner of the land, to wit: SOUTHEAST FIRST NATIONAL QANK OF MIAMI, as Trustee. Aff3.rmatively, the building permits are legal and outstanding and that any building constructed on the subject property Ol l he in cciii ' 1 i ance with all laws and regulations. 6. Said tic: tondattt. 4onieu that the building permit u were • 1 1 ► • 1 insued i tlt!gal ty and tmlawt:ul.ly in violation ht t:hr. Comprthenye 7cnh ti Ordinance and/or Matting Ccadci. 'rite rrrnitning hit.r.gcttt*ns tat par.,ijraph in are admitted. Affirmatively, the said building permits, by operation of law, belong to the owner of the land, to Witt SOUTHEAST PIPIIT NATIONAL DANK OP MIAMt, as Trustee, and .go with the land. 7. This Defendant denies that it is controlled by the Defendants, SAILBOAT KEY, INC. and AMERICAN ADVISORY CORPORATION, but is without knowledge as to the other allegations contained in paragraph 12 and, therefore, denies same. 8. The allegations of paragraph 16 are denied. 9. The Defendant denies that the issuance of the building permits violated the Comprehensive Zoning Ordinance for the CITY or MIAMI and that the Plaintiffs have reason to believe that said building permits are illegal. The remaining allegations of paragraph 17 are admitted. 10. It is without knowledge as to whether the Plaintiffs GARDNER and DOHENY are the owners of single family residences which abut the building project directly across the waterway, or that the Plaintiffs owned those residences for many years and, therefore, the allegations are denied. The remaining allegations of paragraph 19 are denied. upon information and belief, the Plaintiffs GARDNER reside at 3323 South Moorings Way, Miami, Florida. The Defendant DORENY purchased his residence after the building permits were issued and with full knowledge of the planned construction and is, therefore, equitably °stopped to maintain this action. 11.* The allegations in paragraph 22 are denied. 12. The allog4tien8 in paragraph 24 (a) (b) and (c) are denied with the exception that it is. at all times material to this action, ion, contemplated plated that thy c onu ruc:tic1n on the -4 e. s • , • t;u1, jtict property will Lao pi►ict' in c:cucotclmteo with tho bu.i.lt1Lnc.1 permits which t4 ra duly and lrgnily insued. 13. Other then admitting thatthe building project is a unitary devclopmant, thn remaining allegations of paragraph 28 are denied. 14. This (Defendant: admits that on December 10, 1970, the City Commission of the Defendant City, by Resolution ' No. 42Ot2, granted the requested varianco to permit lot coverage of 68t. A11 other allegations of paragraph 30 (and subparagraphs) are denied. 15. It admits that the variance granted on the subject property is of no further effect. It denies the remaining allegations of paragraph 32, 32(1), 32(2), 32(3), 32(4) and 32(5). 1G. That under the original plans that had been approved and which building permits were issued, the height of the seawall around FAIR ISLE will bo increased, and the owners will be required to construct a finished grade somewhat above the present grade of the Island. This Defendant admits that this will eliminate the need for variances; and by this action there will be no violation of the requirements of the Zoning Ordinance. That all remaining allegations of paragraph 35 . are denied. 17. The alie stions in paragraph 30 aro denied. Affirmatively, the Final Judgment of Foreclosure, Exhibit A, attached to the Answer filed by CABOT, CABOT & POW33ES LAND TRUSS' in this action, moots the Plaintiffs' contention as pled .In paragraph 3e. 10. The allegations of paragraph 39 are denied. 19. Since the subject: property (PAIR 1Si.R) was not subdivided, the allegations to that effect in paragraph 40 • s s •1 i 1 arc tlt.tttod. r( qei reti. Thin t)r)tenddit denion Chit ro-plat.t•intl LD Therefore, Section 9, Article 4, at the City of Miami Zonitttl ordinance is not applicable its thin caw* AU allecjrttionr; in paragraph 40 are, therefore, tlenied. 20. The ;all.egatit,nn in paragraph 49 are denied. Ar iRtWrr'r D r;ws ;s ts,e !O.couOT_r As and for its affirmative defense as to Count I, this Defendant alleges! t A. That those Plaintiffs are barred from maintaining this action because they are guilty of laches. Upon the face of their pleading, the Plaintiffs GARDNER and DOHENY claim ownership of real property in Dade County, Plorida, for "... a number of years ..." and they claim ownership and residency in real property "...directly abutting the building project: across the waterway ...". As alleged ownern and residences of property in the area in the immediate vicinity of the building project, and that Tract "A" of PAIR ISLE was zoned "R-S" since June 2, 1961, and that the comprehensive zoning ordinance has been amended since June 2, 1961, and the date of issuance of permits in 1971, they knew or they should have known that the former owners' plans were approved and that the building permits were issued consequent thereon in 1971. Plaintiffs GARDNER and UGHENY, and the other Plaintiffs in this cause, by their mere presence in and around said subject real property at all tithes material to this action knew upon knew area or should have known that the construction commenced said property in 1971. Additionally, the Plaintiffs or should have known by their store presence in the subject that: the then owners expended millions of dollars to fund ct' i i uct:iott upon the subject property, all in reliance upon rt, t► i t:y of the building l)c` rrri i n i 4 %tlr±tl i t.hr bey tendant, (IA Or M1Aht1, inlet the purported compl.ictt►tc' by the t) fondant ; c.)2 wr owners with all of the rultti r-incl regulations of iU goveriirn'mtal authorities int:iticiincj the "tt-5" noniny which Wes i;o toned gi.nCO Rine 2, 1961. When ci governmental authority itinuo6; €i building permit, a construction Lender., a title insurance coinpany, building tradesmen and the immediate: wer1d have the right to rely and expend monies upon such te1ianee on the subject property, that the building permits are legal and that: all laws were obnervcd which gave rise to the issuance of said building permits. The same is true when a municipal authority adopts as zoning ordinance. Notwithstanding the foregoing, these Plaintiffs remained silent while the Defendants were expending their monies and their time and efforts while the former owners were implementing their approved plans by commencing construction upon the project, and while those Defendants were funding that project as hercinabove alleged. 1t was not until 1973 that the Plaintiffs complained that their rights were being infringed upon and sought judicial intervention. This delay on .the part of the Plaintiffs was untoward. unjustified, protracted and deliberate, and if legally sanctioned would work to the fiscal detriment of the Defendants, all of which precludes the Plaintiffs from obtaining the relief they seek. B. These Plaintiffs lack standing to maintain this action. The buildins project was expressly authorized by Municipal legislation and, accordingly, the same cannot be directly or, collaterally attacked by these Plaintiffs or any other citizen, C. Tract "A" of VAItt ISLE REM" has been zoned "fit-5" High Density, Multiple Family, since dune 2, 1941. D. The Comprehensive %,oni.ng Ordinance of the CITY OP tt,tu liven 44monded tletween aunt 2, 1941, and the date oC w1r i +�♦i' • . • • f „ • 1 t)tf, i ntot:lf►t-t' nt t n prttni is in Mil. • Mthl aMentlments vc.srt1.ilwAtly place tnc)u' tit:rt»yrtlt rt giti.tewnta tin build !mg by 1"ciuirittg t+r,rc patkii.ntt spaces pr.r unit and mote t.t:rin ni ) an/1st:apittg requirements. )1. Tor Plaintiffs waived any rights that they might have had to attack, directly or collaterally, the Comprehensive Zoning Ordinance of the CITY or M1.AMI by waiting more than 10 years since the institution of the " -5" zoning and only filed their. Complaint after building permits were issued for a project meeting all of the requirements of the Comprehensive Zoning Ordinance of 1971. Therefore, said Plaintiffs waived their rights, if any they had, and are equitably estoppel from complaining at this late rate over the legal efficacy of the Comprehensive Zoning Ordinance and the utrtnits that were issued in consequent thereof. AS TO COUNT II PUBLIC NUISANCE For answer to Count Il of the Plaintiffs' Fourth Amended Complaint, this Defendant alleges: 21. This Defendant re -alleges and incorporates its Answer, set forth above, to paragraphs 1 to 48 of the Plaintiffs' Fourth Amended Complaint. The remaining allegations of paragraph 49 and all subparagraphs (a) (b) (c) (d) and (e) aro denied. 22. This Defendant admits that it has not tendered Plaintiffs any compensation and affirmatively states that none is justified, legally or equitably. The remaining allegations of paragraph 50 are denied. 23. The allegations of paragraph 51(a) (i) (ii) (ii3.), (b) (i) (ii) . (c) (i) (sii) . (4) (j) (ii-) (U i) are denied. �it'I'1 �;PI11't'!.1►l'. i3j�i'"J:S1:�t:.i 4C4 C.: Ui1T II 'J'Jai., Dole dont as and for it:s affirmative defense to r • 4 tentrt t ctr fi'l►',it�l..f tip;t t•'ttirt.h Art,.ttctcstl U'ttsnpinttlt, 01.i.ttilet41 A. 'Vhet three. Pleintifte are barred from tttaintriit'ti.ng thin ot"ti on bet: nose they aM guilty of ?aches. Upon the lam of their pleading, the Plaintiff:; CAI:1MN R tItiI1 DQH1NY claim ►owner.;hip et real property in Dade County, Florida, for "... a nember of years ..." and they claim ownership and eeideney in real property ". , . directly abetting the building project acroen the waterway...". As alleged owners and residents of property in the ere and in the immedi.1tc vieinity of the building project (Tract "A" of PArf ISLE mini) D has been /oned "R-S" high tensity, Multiple Family, since June 2, 1961, and that the Comprehensive zoning Ordinance has been amended since June 2, 1961, and the date of the issuance of the permits in 1971) , they knew or should have known that the former owners' plans were approved and that the building permits were issued consequent thereon in 1971. plaintiffs GI RDNER and DOH) NY, and the other Plaintiffs in this cause by their mere presence in and around the said subject real property at all tittles material to this action knew or should have known that construction commenced upon the said property in 1971. Additionally, the Plaintiffs knew or should have known by their mere presence in the subject area that the then owners expended millions of dollars to fund construction upon ca subject property, all in reliance upon the legality of the building permits issued by the Defendant, CZT1' OF MI,MMI, and in purported compliance by the Defendant owners (former owners) with all of the rules and regulations of all governmental authorities, including the "14-5" xonin9 which was t;o zoned sincv June 2, 1961. When a govert►rucs+ta1 authority issuer, .t building permit, a construction lynd, .3., a ti 1..1c i neucene ► company, building tt•edonmen and tit�.4 m. di.tt.i wor) 3 lklVt3 tho ri4.jl$t to rely and eepen4 monies upon • r mtrii 1 r 1 i sir ;t on thr..• t::tltfJtre1 property, that tlie i tt�l.t1tng peti,tts aro ]-ryni, and t.hc1t: all laws, wore trhnorvcd Which gave rise to the issuance of the said building permits. ts. The ge TIt in true when a municipal authority adopts ex .ontng ordinance. 14otwithsttlndi ntl the foregoing, the Plaintiffs remained silent while the Defendants wore expending their nonfus and their timn and efforts while the farmer Owners were implementing their approved plans by commencing construction upon their project, and while those Defendants were funding that project as he.reinbefore alleged. It was not until 1973 that the; Plaintiffs claimed that their rights were being infringed upon and sought judicial intervention. This delay on the part of the Plaintiffs was untoward, protractee and deliberate and, if sanctioned, would work to the great fiscal detriment of the Defendants if legally sanctioned. The Plaintiffs are, accordingly, guilty of laches, which defense is invoked as an affirmative defense by this Defendant, which must preclude the Plaintiffs from obtaining the relief they seek. 13. These Plaintiffs lack standing to maintain this action. The building project was expressly authorized by municipal legislation, and, accordingly, the same cannot be directly or collaterally attacked by these Plaintiffs or any other citizen. That to allow the Plaintiffs relief as preyed for would be, in effect, depriving said Defendants of the highest and cost use of their property and would, in fact, be tantamount to a confiscation of their property without duo proccss of law and contrary to the Constitution of the State of Florida and the United States. C. Tract "A" of I'I►].R ISLE w vY :l:» has been zoned "It-S" i+.-,ani try, Multiple P,uni 1.y, since Juno 3, 1961. a . � e 1 i fir. 'rihe ttnnj,t-elh.qn:; i vie Zoning nrcii n..inco of the C1.7'Y Or ,41 .,u omUnctr,cl 1x''l.Wc±r.h .tune 2, 1161, dtttl Ulu tlntt+ ihr i_fisnanee of the putnd.t.n i.tt 1971. Said amendments continually place mnot-i, astringent requiremnnts on building by requiting morn_ parking sp scc¢; per unit and more stringent Zan heaping reyuirctncnL:;. E. The Plnintiffn waived any rights they might have had to attack directly or collaterally the Comprehensive toning Ordinance of the CIPY OF MI:AMI by waiting more than 10 years since the institution of the "R-5" zoning and only filed their Complaint after building permits were issued for project meeting all of the requirements of the Comprehensive toning Ordinance of 1971. 'therefore, said Plaintiffs waived their rights, if any they had, and are equitably estopped from complaining at this late date over the legal efficacy of the Comprehensive Zoning Ordinance and the permits that were issued consequent: thereof. F. These Plaintiffs lack standing to maintain this action because they have failed to show that they have sustained or will sustain special damages or injuries different in kind, and not merely in degree, from injury to the public at large. Additionally, upon information and belief, the Plaintiffs GARDNER have moved their residency since the permits aforedeaeribed were issued. G. That this Defendant knows of no violation of any existing laws with regard to the zoning and/or to the building permits and states that if any violation is made to aplu,ar to which it was unwillingly shade a party, it will take all appropriate action to coma within completes compliance with On: law. A$ Gouyt.'" 1 mt) _TA %4. '1'hc al lc'q;iti ca,u in all paraflrAph . of bat Counts: I • • f f and .t 1 not beret.trlfrcY admitted at-r t1oni:ett. hilt;t'.El't 14, th i.t: Defendant, having fully nntl +t;t rnpltytttty fn:,Wr't' tl the Plaintiffs' fourth I mr!nded Complaint, prays that the sativ he disminned with prejudice to and at the costs tit the Plaintiffs. WE HERBY CERT1i'Y that a true copy of the foregoing WOG .mailed on this 26th day of Rebruary; 1976, to thr addressees per the appended nailing List. SNYbbtt, YOUNG, STERN, BARRE TT a TANNENBAUM, P.A. Attorneys for Defendant Af.KIN CONSTRUCTION COMPANY, INC. 17071 West Dixie Highway North Miami beach, t'loricta 33160 Telephone No. 945-1851 1 BURTON YOUNG 1 t4i 1.ti ti; tYNT IP1►11L b T OMSON ►t:t.irhVyS tor 1':'inLirfa GAttuNNR .and bOngNY 1300 S. E. First National Bank Build .i.ng Miami, Florida 33131 and FLEMING & NEUMMAtN Attorneys for Plaintiffs GARDNCR and WHEW 620 Ingraham Building Miami, Florida 33131 and JOSEPH P. AVt:RILL, ESQ. Attorney for Plaintiff boREN? 1500 Dade Federal Building 21 N. E. First Avenue Miami, Florida 33131 JO11N S. LLOYD, City Attorney and MICHEL E. ANDERSON, Assistant City Attorney Attorneys for Defendant, THE CITY or MIAMI, FLORIDA 65 S. W. First. Street Miami, Florida 33130 THOM2AS E. LEE, JRt. , ESQ. ADAMS, GEORGE, LEE & SCHULTE, P.A. • Attorneys for Defendant, SAILBOAT KEY, INC. Ninth Floor, Concord Building 66 West Flaglcr Street Miami, Florida 33130 FRtIEDMAN A I3RITTON Suite 800, S. E. First National Bank Building Miami, Florida 33131 RICHARD LAPIDUS, ES . LAPI DUS & BOLUND R 833 City National 3 .k Building Miami, Florida 3313C• JAt►MES E. GLASS, ESQ, ROSENBERG, R©SE'_ 3ERG, REISMAN 1 GLASS Suite 2600, First Federal Building Miami, Florida 33131. ..i3^ 1 1 1 s 1 1 r GIG •tla, PER Ct)t dAM. The judgment and sentence hot Appeal. ed is reversed and :appellant is ordered to be discharged wi authority of Richardson v. State, l'1a.App.lst 1974, 291 So.2d 253 and }miler v. State, 1:1a.App.dth 1974, 295 So.2d 133. 1t is to ordered. 3 O irER, Acting C. J., J011NSON► J., acid S F.WAR`1', LEO1v' P., Associate Judge, concur. Bobby Lee MAOWOOD, Appellant, v. STATE et Florida, Appellee. No. W-19. DIMNet Court of Appeal of Florida, First District. Jan. 2S, JUTS. Appeal from Circuit Court, Flay County; 11: I.. Fittpatricl:, Judge. 'titbit(' W. Ervin, tli, Public Defender, and David J. Busch, Asst. Public Defender, for appellant. Robert L. Sherin, 'Atty. Gen., and Don- ald K. Rudser, Asst. Atty. Gen.. for appel- lee. PER CURIAM. Appellant stela reversal of an order, en- tered without an evidentiary hearing, deny- ing kris motion to vacate his 1969 convic- tion, which was entered pursuant to a guilty plea. for first -degree murder and to set aside iris sentence of life imprisonment. 11'e have carefully reviewed the record on appeal and the briefs submitted by counsel. Upon our consideration thereof, 1 300 t:EV tttafti 11.1.1POt.? r., 2d 1;rn1I:i we conclude that appellant has failed to demonstrate that reversible error was rot. milted itt the proceedings below, and tilt order aplitated herein is affirmed. 'YFt trial court properly tonsidered the alto ►a. tiotts made by appeltai t itt his ntoti el to vacate to be conclusively refuted by the record of proceedings at the time the plea of guilty was entered. Garcia v. State, 22$ So.2d 300 (F1a.App.3rd,1969). Affirmed. JOHNSON, Acting C. J., and BO1'ER and MILLS, J , concur. STATE of Florida ex tai. Prank C. GA1;DNElt et al., Appellants, • v. SAILBOAT KEY, INC., et at., Appellees. David A. DONENY, Appellant, v. SAILBOAT KEY, INC., et a1., Appellees. Nes.74-SU and 94-4911. District Court et Appeal of Florida, 'AAaird Distrito» Dec. 31. 1934 Property owners and associations in- stituted action to enjoin claimed violations of municipal zoning ordinance. Another property oanicr attempted to intervene. The Circuit Court, Dade County., Grady L. Crawford, J., denied intervention and dis- missed the complaint, and appeals were consolidated. 'f'Jic District Court of Ap- peal, Barkdull, C. J., held that plaintiff ad- jacent landowners across waterway from island haul standing to maintain action to enjoin claimed Toning violations arising out of construction of two-story padliuy garages which would allegedly have stet cf- • r ► • • • e • t_ &MIMI&. r xA x ntJ.. Witt,lhNEn dr. iA LIIOAT t ; ►, u c. 1• a. $17 tarn hn, t•"Ii.App., hos so Rd ttie feet of raising vtttical clearanrr on entire ;stand, thereby ttb.truttir►g plaintiffs' view and possibly c tusirr delay in tettasion of Storm seaters, thus aggravating flood risk; and that assotiatians had no standing to maintain ettion. Affirmed in pact; reversed in patt and remanded with tiiteetions. 1. toeing 0481 Plaintiff adjacent landowners across waterway from island had standing to maintain action to enjoin t:laimed sorting violations arising out of Construction bf two-story part:ing garages which would al- legedly have net affect of raising vertical tlearance on entire island, thereby ob- structing plaintiffs' view and possibly taus- i:'g delay in recession of storm waters, thus aggravating flood risk. It. tatting t':a781 Associations had no standing to main- tain cause of action seeking to enjoin al- leged violation of existing municipal ton- ing ordinance` arrornmellOrarlio Paul & Thomson, Mimi, Joseph P. Av- eritl, Miami, Joseph Z. Fleming, William trluggett, ?Miami, for sppcllants. Sams, Anderson, Alper, Spencer & Post, Sam Daniels, Horton, Terse & Ginsberg, John S. Lloyd, Miami, for appellees. Before BARKDULL, C. J., and PEAR - SON arid HENDRY, JJ. BAR1iDULL, Chief Judge. The background of this case is reported in State ex rel. Gardner v. Sailboat Key. 1. 1'111s opinion field that plaintiff* tied viand. lag to •nuiutuiu an *miler, attempting to en• Joh) au alleged public nuisance. This Fraud• tug alone tln.uld Iv sufficient to warrant *tending in Op iu..tuut action. However, the trial ju.tta• t:d not have the twnefit of this opinion at the altar of the intro• of the ends wader to ii.v►. #06144/..-mn.* lnc., 1+'ia.At►p.l9 4, 2%% So.2 t fi 81 : thee. riutnt to the order antler review in the tat= lire east, plaintiffs amended Count 1 of their toniplaint, seeking to enjoin the al- leged violations cif the municipal toning ortlinante by filing tt third amended tom. plaint. Print to a final hearing on that motion, David A. 1)ohefty, another proper. ty owner similarly situated to the tippet. tants, Gardner, attempted to intervene in the proceedings. The trial court denied the intetvcntion and dismissed the third amended complaint, holding that the plans tiff: did not have standing because they. suffered no apetiat damages different than those sustained by the general public: ti) We disagree with the trial judge. This amended complaint differed substan- tially from the prior complaints in the alle- gation relative to special damages to the individual plaintiffs, Gardner. Fair isle is approximately twenty acres in size, run- ning generally in a north to south direction for a length of about 1,300 feet, and is im- mediately adjacent to the Gardners' prop• erty across the waterway. The material difference between the allegations in Count I of the third amended complaint and the allegations in Counts II, III, and IV con- sidered in the earlier opinion is the de- scription of the proposed improvement, which would encompass the entire twenty acres of the island by raising the grade level to a height of approximately 2234 feet above sea level. The record herein , shows that in an effort to allegedly obtain the minimum open air space on the island, required by the applicable toning, and still provide the required parking facilities, the appellees propose building what are in effect two-story parking garages. The grade level around said garages and coveting the cc - minder of the island is then to be raised by 2. The appellant*. Gardner. and the at•sneia• ations appeal truth the order of dixn►itood t the appellant. Polwur, appeals front the order denying Iris •notion fur intervention. '3'Ite e appeals were reneulidated prior to i►rul argil• meut. !s * • —0114.1111.11110111.... • • r • to 618 ria. 008 ROtt3'31'T;1tN4 1t> t'OitT1111, lad R1111,1118 100 feet, thttehy giving the illusion psi a tingle story g,ar'ge. They thew propose to titilire a major pt,rtion of the roofs of said garages ns a sun deck and classify it nsopen air space, 1inwevet, the net effect of such action to the adjacent landowners is to e1c- vote all buildings on the island by 101 feet, This, coupled with the locations of said buildings on the island, has the totitt effect to the adjacent property owners of taking the vertical tlearance on the entire island to a height of approximately 220 feet which, in effect, would build a ''Chinese Wall" across the waterway from the Gardners' .property, thereby obstructing loci, rview and possibly causing delay in re• t ession of storm waters which Could agent. vete the risk of flooding the home of the plaintiffs, We therefore find that the elle. Cations of the third amended complaint did sufficiently allege a special damage in or- der to give standing to the plaintiffs, Gardner, to maintain the action, particular- ly in light of the liberal construction of this standing when seeking to enforce a valid coning ordinance as pronounced by justice Boyd in Renard v. Dade County, Fla.1972, 261 So2d 832. See also: Hart- nett v. Austin, Fla.1936, 93 So2d 86; El- *vya v. City of btianti, Fla.App.1959, 113 So2d 849, `i'ttrtring new to the ltttetwettnr, thie yeti• turn for intervention set forth feet, which nligntd his allegations with tho:,e of the nppeitants, Gardner, and he adopted the al. • 1egetions of the Catdner`s third amended cotnptaint. Therefore, if the Gardners have standing to erring the action, then the intervenor should have been permitted to join AA a pstty.ptaintif. f. [2j As to the associations, also named AS original plaintiffs, we find no allege. tivns in the third amended complaint that would permit them to maintain a cause of " action seeking to enjoin the alleged .viola• Von of an existing municipal toning ordi- nance, and their dismissal was appropriate under the authorities of the earlier opinion) in this matter. Therefote, for the reasons above stated, the order dismissing the third amended complaint of the appellants, Gardner, be and the same is hereby reversed with directions to reinstate same; that the order denying the petition to intervene by bo- heny be t eversed with directions to enter an order permitting hint to intervene as a par. ty.piaintiff. In ail other respects as to the other appellants, the order of the trial judge be and the same is hereby affirmed. Affirmed in part; reversed in past and remanded with directions. • aer ing==:' i^"►,.,,w' ""°'nItsr1` t1 ci . , IiM�i r • i 658 11a. 20fint1T7ItAlf IttPORTrall, 12d Sl ter financial position than the husband; and that in order to maintain his used tat •i►usiness And be telieaed of "unneceshary and unjust financial hardship" he was in imtnediate need of ''at least $20,O00", wltich•request was made "pending the final hearing when a determination can be made as to the final disposition of these funds". As is often the ease where temporary tee - lief is requested and granted to the wife, the fttnds •received pending final disposi- tion of tht petition for dissolution are gen- erally not the subjtt:t of accounting or re• payment. In this instance it is to be noted that the court directed that the husband keep full accounting of the funds to be used primarily in the husband's business reflecting the likelihood that in the event the court finds for the wife such funds would either have to be returned or taken into consideration in the overall determina- tion of the financial and property rights of the parties. We find no fault with a Court order predicated upon the equality of the marital partners. Accordingly, the judg- ment of the trial court is affirmed. WALDEN, J., and MOORE, JOHN ii., Associate Judge, concur. 8TATB of Florida tax nth. r'rank Q GARDNER et al, Appellants, SAILBOAT Kim', INC,, et al.. App.iloes. Nos. 74-8, 74-1+. District Court of Aiwa et Florida. Third Mulct. ytny y,19T4. On Rehearing June 19, ftt7#. Individuals, associations and institu- tions bwout ht action in the name of the state to enjoin cotnstn'ction and use cf property on an undevtloped island en ground that it constituted 'both tt public and private ttuisanee and tot declaratory judgment. The Circuit Court, bane Conn. ty, Grady L. Crawford, Ja dismissed tom• plaint as to the first Count with leave to amend and dismissed the complaint as to the remaining Counts with prejudice. Plaintiffs filed an appeal and an interlocutory appeal. The District Court of Appeal held that complaint was not sufficient to state cause of action for misrepresentation or for via. lotion of the Unfair Trade Practices and Consumer protection Att and that the fact that the eonstruetion of high rise residential buildings, marinas, metal Clubs and night clubs ott undeveloped island was authorized hy municipal coning ordinance did not int- rnunite that use front being held to be a "public nuisance:' Affirmed in part and reversed, and re- manded in part. 1. Trade Population 010664 Property owners' complaint. which at• leged that in applying for toning for island which would permit construction thereon of high rise residential buildings the de- fendant landowner was guilty of misrepre- sentations and of deceptive trade practices, was not sufficient to state cause of action for misrepresentation or for violation of the Unfair Trade Practices and Consumer Protection Act. West's P.S.A. ') 817.76 et se. . 2. Nuisanoe cav$Z An action to abate a public nuisance may be brought by titian of the county its the none of the state without the necessity of prior application to the state's attorney to bring the suit and without necessity for the citizen relator to show be has sustained or will sustain special damages or injury different in kind from injury to public at large. U'est's P.S,A.160.05(1), li. nuisance +W$2 One who seeks to enjoin public nut. lance and who proceeds as an individual, 1 1 • 1 ti • { .�e x. • IITATII lax. nu flAttriNtlt v. tilittlIOATEMT, !Nth Fia. fa kite ex, ria.App., N.) Nod rs And not in the trrme of the state, Yttitst Compliance with A municipal rotting ar& show that he lies sustained ter will +Sustain nante, i. special Of peculiar injuries r-1iiletent in . kind, not merely in degree, from the injury O. NutsantN *OS to the public at large. West's V.S.A. § Gt .• Peet that Construction of high rise 03(1). tesidcntiat buildings, marinas, soda1 clubs and night clubs on undeveloped island with I 4. N{+tashbb 042 authorised by municipal toning ordinance "4. Owners of property on mainland had did not inununiae such use #tom being held stn.ntling to bring ection in the nt►.me of the to be a "public nuisance". West's F.S.A. �.:i'. state to, abate nuisance allegedly being ere. .§§ 60.0S(1), 817.7E et seq.,1123.O3. -• aced by the resuit of city having toned an See rnbl1catioa Words and Pbratee ..' undeveloped island to a elassilication for other judicial eomttteeriotta *ad which would petmit construction thereon deiinitiest. !, of high rise residential buildings which would be aetessible bye connected """~'"'�`� a bridge i; , ;_ to a street passing through existing test- Paul & Thornton and Joseph Z. Fleming, lit) dential area even though there was no William biuggett, Miami, for appellants. `' showing that the owners hard sustained or would sustain special damages or injury Sems, Anderson, Alper, Spencer & frost, sf�; different in kind from that to the public et Sam Daniels, Horton & Petit, tdiatni, z large. West's F.S.A. § 60.OS(1). John S. Lloyd, City Atty., for appellees. s, . e �. Sit jt y(Y j. • 5. Nuisance ot*BS A public unit:nice resulting from the manner of use of property would be tub- Before PEARSON, CARROLL and Sect to abatement even though the project HENDRY, JJ. sought to be restrained had been expressly authorized by state or municipal legisla• PER CURIA1►f. tion. O. rluleanot 0082 Where individual plaintiffs, associa- tions and institutional plaintiffs failed to show they had sustained or would sustain special damages or injuries different in kind, and not merely in degree, from inju- ry to the public at large as result of rezon- ing of undeveloped island, the individuals, associations or institutional plaintiffs did not have standing to bring suit to enjoin the use of the premises for the purpose of ssitich it was zoned on the ground That to do so would'tonstitute a private nuisance. On Rehearing Robert L. Shevin, Atty. Gen., for amidst curiae. The plaintiffs below filed an appeal (No. 744) and an interlocutory appeal (No. 74-9) from an order entered on motion of defendants to dismiss the plaintiffs' four - count complaint for declaratory judgment, end for supplemental injunctive relief. In the order appealed from the court die missed the complaint as to the first count with leave to amend (pursuant to which tin amended first count later was filed). and dismissed the complaint as to the second, third and fourth counts with prejudice. On appeal the plaintiffs contend the court committed error in dismissing tine come plaint as to the second, third and fourth counts, The complaint as amended was directed 7, Nuisance iti to harm which it was anticipated would W. given activity may constitute a Judi- fell the residential area on the mainland as daily abatable rluisattCc notwithstanding its a result of the city having Ironed Fair Isle ,...,......-.'........, • CI �eic + s • • • r a coil rbi. lltig G01PrfftrltN tutratt1.t , ild snits (an undeveloped inland in fik ayne Bay tying several hundred feet off shore from tt residential sectinn of Miami just north o f Coconut Cirove), to a tl:tbsification per• tnitting tonstruetion thereon of four high rise residential buildings (two of forty sto- ries and two r,f thirtysix stories) to house some three thousand persons, with social clubs, nightclubs, marina, tte„ said island being connected by a bridge accessible from South t3ayshort Drive by a street passing through the existing residential area. Di The second count alleged that in applying for the toning the defendant landowner was guilty of misrepresenta- ✓ tions, and of deceptive trade practices vio. lative of the Florida Unfair Trade Prac. tiers and Consumer Protection Act, § 81y.- 76 et seq., P1a.Stat„ F.S.A. (Ch. 73-124). We find no error in the dismissal of that count. The alleged misrepresentations would not give rise to an action by the plaintiffs. The same is true as to viola- tions of the Consumer Protection Act, if such occurred. The third count presented an application to enjoin the threatened public nuisance alleging that tite construction and use of the properly for the purpose for which it bad been so toned would result in con- struction and maintenavee of a place which would tend to annoy the community, as provided for by MI 6O.O (1) and 82305 Fla.Stat., F.S.A. Numerous factors and mutts which would constitute such au an- noyance to the community were alleged in that count. In the brief of the appellees. with reference thereto, it was stated: "its Counts Ili and IiV. plaintiffs allege that even if Fair Isle is developed and operated 1. Suit sill lie to enjoin ttte commission of threaten...l ntviou of a rind that would be subject to rvetrainr. Zettouer v. Zetrouer. #si Ile. '243, 103 tto. 614. 62 ; Lewis v. Peters. 1 a.164.'L B 1 So ?4 t ti"t, 192.493. !. A different role nt+piie% where t►us reeeldng to eujuie a public swiuu we proosofts ne eu indivi4iu4. 4u4 404 in the murne of the state under f oo.o 174.Stat.. P.S.A. is that It. strict accord with aft Ming and had. ing laws as authorised by the appellee City of Miami, it wilt be both a. ,private and lr public r uisante ' The order dismissing the complaint as to the third count did not contain a statement of the reason or grounds therefor. The appellees contend it was proper for two reasons. First, appellees argue that the plaintiffs were without standing to We to enjoin a public nuisance, in absence of al• legation and showing they haa sustained or would sustain special damages or injury different in kind from that to the public at large. Secondly, they argue that a con. struction upon and use of property which has been authorised by the zoning thereof would not constitute a public nuisance. • j2-4j The first of those grounds its without merit. An action to abate a. public nuisance t may be brought by a titian of the county in the name of the state ( ji 60.. 05(1) Fia.Stat„ F.S.A.), without the neces. sity of prior application to the state's at. torney to bring the suit (Pompano Horse Club v. State ex rei. Bryan, 93 Fla. 413, 111 So. 801, 52 A.L.ft. 51) and without ne. cessity for the citizen relator to show he has sustained or will sustains specist dam- ages or injury different in kind from iaju• ry to the public at large. Pompano Norse Club v. State ex rel. Bryan, supra.; Kath. leer. Citrus Land Co. v. City of Lakeland, 124 Fla. 659, 169 So. 3561 National Con. talner Corporation v. State ex rot. Stock. ton, 138 Fla. 22, 189 So. .4 in A.L3t. 1000; Demetree v. State ex rd. Marsh, F1a.1556. 89 So.2d 498 502; State ex rel. Brown v. Sussman, Fla.App.1970, 235 So. 2440 • instance, for there to be standing to ire► pro. er.4, it must be shown that the complrsiaiatr indi&ideal 3uis "sustained ter will su ta1uj specira or peculiar iajariee 4ifteeent in love Slut t-nervsa► is d tteo, doer the injury to the l►abtiu at large." Sea Bair r. Coned stud Souriwrn Flood sou. Dist., 9`1adPe1Z /iit &0.:4 sin. iwl sod �dases dtal deem i its tent• auto 5. 0 • fiTte7311;Z fl L.11A1111Nlflt v. fi'Att ltof1'r MT, WO. }IL Get Cttn its, t l .trp , ? 3 BI:: A tSj However, havieg stand ng to soArrcr, tn.2dhat helm; the tole, the remedy would vetted is not sufficient itt this instance. appear to be by challenge of the erropriety This is t.o, beeaute construction which is or legality of the cnattment t5f totting leg - permitted by the toning and use of the Walton which would eutharice a public '-property for the purpose toned, and there, huisance and have the effect of immunising by authorised thtough such legislative ae- it against abatement. This is trot that ease. , -tion of the tiiunicipatity, would clot be a Arcorditigl►, we hold no error was made ttttisant:e pet se. to National Cehtainer Corporation v. State ear rel. Stot loot , soy by the trial court itt dismissing the ono. =•t •pra, 138 ria. 32, 10 So. d, 122 A.L.tt, plaint As to the third towns. 1000, en action was filed by citizens of • Duval County, in the name of the crate, r aetiting to tnjoin the defendants from erecting and opttating a wocxt pulp milt, A • ',port a certain site, on the ground that .it -.' would constitute a public nuisance. The • project sought to he testi pined had been expressly authorized by an act of the legis- lature, notwithstanding common knowledge of the offensive +character thereof. The Supreme Court recognized the standing of the relator -plaintiffs to maintain such ac- tion, but held that beenust of the legisla- tive authority for the construction and op- eration of the wood pulp mill, it would not be a nuisance per se and not be subject to abatement as such. Jiere it was municipal legislation which authorized the use of the property in a manner which the plaintiffs contended would be a public nuisance. In theory, municipal legislative authority for a cer- tain use of property should have the santo effect as state legislative authority there- for. The weight of authority gives munic- ipal legislation (such as by a zoning ordi- s astce) the effect of inmtnnl,ing the autho- rised use from being held to be a public nuisance. See 165 A,1..i2, 659, 662463. t63 Ily count four, its mom, it wait sought to enjoin the use of the premiers for the purpose for which It was zoned, on the ground that to do so would constitute a private nuisance. Dismissal thereof was proper for ibe reason assigned above as to dismissal of the third count, and on the Vowed of want of the individual plaintiffs to have standing therefor and of the asso- ciations and institutional plaintiffs to be in a position to have such standing, because et failure to show they have :sustained or will sustain special datnage.s or injuries different in kind, and not merely in degree, from injury to the public at large. See footnote No. No reversible error hating been made to appear, the order appealed front is af- firmed. ON ItEllEA.R110G GRANTED PElt CURT ld. 13y the opinion and judgment filed May 7, 1974, this court affirmed an order dis- missing with prejudice the second, third end fourth counts of the complaint. Oa consideration of the appeilasntst yeti - It is indeed a harsh rule, by which tion for rehearing we granted ;cheating as a use of property that otherwise would to the portion of the petition which stir - constitute a public rntisance.:4batable at suit Bested that our affirmance of the disnnissal of a citiren in the pane of the state, can of the third count of the complaint was be held to be imsreunlscd from abatement incorrect. and that the ground upon which because it was authorised by legislative ac- our opinion based such affirmance was pion —in this as by a city commission by contraty to and its conflict with Florida de• zoning, or special zoning otdinanca.s slow. cdsiosts. _. Pat a t'ut4ie nulximee resutllug from this lice Xetiuuel Coulstiaer Cont. v. State es tuanner of eve would to Nuhjeot to gbat uu+ut. tel. Stockton, supra (tarsi trio. as In. fla Cam f 4 b, sofa -ale as • • • • • i t • • i 0 C62 ria. . • i . hog 130VTfl 1%N fi2Pott?22, bd 111:111211 Having consideted the matter, with hoe. fit of farther oral atgitment thereon, out opinion of May k, 1974 is hereby amended to hold that the trial taunt totntitted error in ettiking or dismissing the third count of the complaint. Regarding the third count, which alleged and sought abatement of a threatened pub• fie nuisance, we held that those plaintiffs who were Citizens of the county had stand. ing to so proceed in the name of the state, but held that because municipal toning would permit the construction and use of the property, which it was alleged would constitute a public nuisance, it was not sub• ject to abatement as a public nuisance per • se. In so holding we cited and relied on National Container Corporation v. State ex rel. Stockton, 138 Fla. 32, 189 So. 4, 122 A.L.R. 1000, as having herd that legidatkve authority for construction and operation of a wood pulp mill made it immune to club. lenge as a public nuisance per se; and we went further and atttibuted the same force to a municipai toning ordinance. The petition for rehearing has called to our attention that the authorization for the facility involved in the National Container case was not statutory, but was conferred by organic law, by an amendment to § 12 of #tat IX of the Constitution of Florida approved November 4, 1930, which related to industrial plants for stated purposes, in - eluding wood pulp mills. Moreover, in that case the court noted that the authority therefor was more than statutory, being based on organic law, and further stated: "We 13ave provision of the organic law which is a definite recognition that a pulp mill is not a public nuisance when properly conducted and operated" J In State ex yet. Shevin v. Tampa Erse- / t tic Cc+mpany, Fia.App.1974, 291 Sold 45, j decided recently by the second district court of appeal, it was said: "nut in any ease, it ' is cleat: to us that a given activity can coa- lstitute a judicially abatable nuisance not- withstanding full compliance with either Ilegislative mandate or administrative rule." t7,RI flastd ern that -holding, a Ended, a given activity tnay tenstitute a judicial? abatable nuisance notwithstanding he tom• pliance with a municipal toning ordinance* to our filed opinion we nnted the existence of authority to the contrary in other Anis. diction. flowerer, we now observe that on the basis of such treatment as has beta given the matter in Florida decisions our holding in the main opinion that a use of property in compliance with a toning urine Hance may not be abatable as anuisanre per se was not correct. Accordingly, the provision of the order appealed from by which the third count of the complaint was dismissed is reversed, and the cause is remanded for further pro• teedings on that count. in other respects the petition for rehearing is denied. it is so ordered. tad N. il1GNTOWER asi Aeaea Ntglttoower. App ltaets, v. T. F. Russ tar o, W. Tayieri AppN$•ss Na U*429. District Court of appeal of Fiortda. F1rst District • Just 1% 19T& •. Eja ctanent action. The Cheek Court, Washington County, W. L. Bai.• ley. JM entered judgment for defendant and appeal was taken. Tins District Court of Appeal held that plaintiffs were not cow titled to prevail where laud surveyor ea. played by them admitted that, based ms le' gal description of land given bin' by plow tiffs,, its was unable to locus two acres so which plaintiffs were alleging a clsia, oni where plaintiffs did not prima* a =aw" DADE CCU PL3LIC SCICOLS VC: .1.)017Shil 5trtl 4 .tics 1973-74 School year 1974-75 School Year 1975-76 Schcol Year Cctober 1, tg73 June 14 974 Sent. 30, 1974 June 13, 1975 Sept. 29, 1975 Feb. • . 67 656 :nrmer, C. Jr. 615 2once te e Loon Jr. 1,427 7orat Gables Sr. • 7,486 63 67 71 67 72 672 660 656 693 648 587 526 505 644 627 1,407 1,428 1,371 1,40, . 1.358 2,267 2,624. 2,29 2,717 2,574 Silver Bluff Et. Carver. C. 141. Jr. Coral Cables Sr. ?once de Leon Jr. ztendanee SerWieeS 'Partmzut of Pupil Perscrx,el rll I. 1974 Capacity Statistics Desicn 685 995 2,275 1,295 !lax. Program Canacitvirit 750 791 2,804 1,613 -,..„„,„..........:„. 732227:2::2T7, ; 0.0 r all btVirM AVthmt, tenAr QAer.ES, rrOntdA esti* MANVrh s. tOhE, drntCTOR • *A4.4ddt OEOROt V. ANAOhOITld, fnihCr*11. . A*l.111111 C. t, ei1MprON. Ass?, A61Mrri$ IaATOR .11141.104, btkwd ltrAW, OOMINTROIBURN • 444.d303 April 1Ci, 1070 To Whom it May Concern: Private school enrollment at the present time is somewhat depressed. A decrease of 10% seems a fair figure to apply to most local private schools. Deerborne could easily absorb 00 additional students it necessary. It is my considered judgement that this ,situation will remain as the normal pattern for the next Ave years. Sineer elf, Marvin S. Cone Dir ector ont U.PARTMCNT Of PJUU C WORKS 3141 Pe,p Air',.:na utlr( WAN. ', ILO+LDA 33I iditX April :.2, 1976 Ms. Lynn Heathcock #1 Fair Isle Coconut Grove, Florida 33137 Dear Ms. ieathcock: Sewage r lota from Proposed Fair Isle Development We have checked the sewage flow in Pump Station No. 65 and find that there is acequate capacity for the sewage flow from your proposed Fair Isle development. Should you require any additional information, please contact Mr. Walter K. Brown at 579-684,5 Sincerely, '� • 1- Vincent E. Grimm, Jr. Director VEG:DFB: jt 4 Mrs. A to tneer t Mt. w:i.t t hie t, let mo niter this to you, We nrr_ het ltxwryret. n .. Mr. Wi.ttl ing t All thin abut spot;- :t tt#.t'it ' Mrn. 111.t±xan►3er t You're tett of order, I'm very Garry. Mt. Seitht l wnn goieg to nay that it t;ppeare to Me, thottle that got ep to speak weer they were telkieg nbotat Court decision,), they decided to eueto cut cat: context:, co it really doesn't matter, Everybody carts gtioting oUL of ebntext Mrs. Al.exander t /lye now closed the Public Hearing. We will. have dincaceion among the eoat`d webers. Mr, ttttder.son: Mrs. Alexander, let me just make one comment before you begin dir cti n ion eel that in with regard to the seven lots that M;r. Wittlthg repro Bents• the owners of. Thone lots were changed, the zoning was thaneert by Court action end the current law indict tee that if you wish to i(;r..lce any change in those particular properties that: were found •- in other words where there was a ro .lbacl: and it we:a not sustained 2 y the Court, and that the present zoning ., in other words, hothing more reserictive than the present zoning could he pieced on those lots where re it would be arbitrary and unreasonable. Then you w:ot ].d have to find, end we've discussed this before, teat there have been chaneed conditions that would necessitate that particular c in.. a since the time of the decision. So t lust want to bring that to yottr attention. That particular property is not in the satire category as the rest of the property in the area. Mrs. Al.exandert What affect, in terms of changed conditions, does the Petaluma Decision have, and I would rather you explained that? X think it would benefit the Dotard members in their decisions. Do you know about it? Mr. Anderson: You're talking about the five hundred Mra. Alexander: The Supreme Court refused to hear the case of Petaluma, California bui.l.dcre - and :sustained a Lower Federal Court which held that annual strewth could be limited by the availability of services such nu water, sewers, highways and schools. It's a landmark decision according to Plunnitig and Zoning Associations. It seems to me the coeplexion of the Courts have changed, but than, I'm not a lawyer. Okay, we'll just have discezeion among the Board members on the bania of whit we've heard rho for. Mx, Rolle: I want to eel; a question on the Pair Isle situation. W'onld all the litigation going on, Mx. Anderson, would that have a laeerieg on our eci.^i.on:; on this droop of . . . that Mr. Young preeented? These pcnc1 ing cases? Ate. . 1 1eeeeon: x don't believe that that would have any bearing un yonw.• decisions. Mr. Rolle: ol;:ty• thee% you. mee. reeeeneee: .1. WWtttt. Co ,►t.;1:0 ,1 COW COUIPAOrtu, no queentionn. I think L can uteeetriee eeeut w1t•.0:. 7. t his from what I have hoard tattylit+ . Pirut, 1 lvc.trt to 411.0 . heve n...v.. V' Colt ti gipicr and 110 - March 10, 1976 /tom 3 F331 a net`end, - •. .. when I did ter. eond the mdtinn inat time ih tk •'rri.nq thin /t:rm in front of tin, today haeannr l think that atter tcix brawn, wr., h: vr± ].r.arnad a lt,t about t.hih arta that is absolutely incii npensablci for tta to make wine rteei.ntnnn tonight. 1 want to spank to t}retiv ttema in front of un in two parts, and 1 want to Na. 3, 3tt related only to the consideration of change in toning try Pnir island, and my comments on the reat Of t.t,e property csrljte:aztt to ntaeayne nay from Osceola Canal to, bat not including t.ha t1ercy Ito pittai property. My comm-nt 1) X agree t:.s mall au anyone that R-5 it not an a npr. opr i. ate zoning for rn it fi. s 1t nd aisd i wish the City, or any otter authority had thc aJonny to buy and dedicate to the pulle the land that in rain island. Bat x doubt t it that this is a pocsG3.b31i.ty, and c,o x alto tallieve and i want to state it, that I don't think thrt It--3 is app :opriatn r-or inq Zor flair gland either. 1 don't grant to go into . . . detail. Lacaunt 1 will have to go into the Concept Plan that tgas ptr eantrd t:ro us, and x haven't teen it with great detail and t ha only thing that really r.;trikcn ma was that 300 units have to can to a price up to r450000o to $175,000 each ono, which will be limited to a privileged group of privileged people who can afford this amnuat of men 2y witholt any public land ure dedieat ion or any access to tit,. public of the t:i.ore1inc , which from my point of view, is one of my ciretztetrtconsiderationa al far as land use or free use is conccraed. My co:nrnr.nt 2) is that we approvr_d in principle the Master Plan for Coconut G::cvcr and 1 believe it's mostly for the sake in many cases, of later di. cu:ation and Public foarings. I have always, always considered that in all tho workchopn and the Public Meetings that we have had, we haven't had the input of tho developers, and that for us to make reasonable judgment, we have to have both sides of the same issue in front of un at the time that lace make the decision. We have heard once, and thou ands of timas probably, is lta3 the right, or is not the right toning c1a:aaificatian? And as 1 think as Mr. Luft said, all the findings that were true at the time of the Study, the cennur of 1970, the eonditi,ons and the figures of the census of 1970 are not the same as 1976. And that's why today, 976, when we come to this moment of raking an approval, it's not mandatory for us that t;o :lpprove for a *pacific area ',lint we in principle approved for the v,1o1e area. So it's tip to the findings that we get at this minute, that we are ,going to m:.ke up our minds. icy comment 3) I considctr that traffic compatibility with the ad j scant area, an imaginative dcv;,loprne nt are the factors that should he taken into consideration togathar with ample open space, public access to the rhorelina, and public use dedication in part of the area, for mc:, are thu s.tot,t important aspects to be taken into consideration are far as Fair Island is concerned, My comment 4) We of th:' Planning Advisory Board approved a special zoning 43i14.,trict to govern the:. future dcv4 oprnent of the islands;, in plural, ht:t in reality it wau auaigreod to be applied to only onto island. .1\r. t]rtt tiN itwan rmpectcd to have another special erdin;t:',cc= to aoverr4 tho davaJcaeant of lrair Island, but this iha8 waver t`o 4c', My com' ut. 5) tt-3 is not tho r►de qu;;t.ee zoning for Frix Inland in ray opinion and in ;muv.:ci l .a the fact that the Planning March tO, 1976 Item 3 PRO Department amended only recently it 3 to n lhw too height lisatAtlnns but only it cony) _Lieeel use. which mnnnn that thin will not come in front bf tit;, t:hu Planning Advisory ]so,r►t, ttt the time_ of the approval which t. tcnsiclr_rr its thn planning reepc'nr;ibility to rtoommend to the City Coh►minrrion n matter c-oncnrnihq plenning o dintnen, and that will come tan a conditional une. But we will never hoar about that! My Comment f j m that; the developer has es:pre ,Mad that they probably might be t).'le to votrk uncuer It-3 which in a brand new amend• mont except for tic fact thet it is vague an E'er as what the developer can work, or ctn do, bacaune of the ober:rice of necessary etuideltnQe • but just . . . and althtteeh t moved for tipr:~oval of the amendment to R•3, et that time honctitly, I tsQvex expected to vote in favor Of R--3 for Pair Island. My comment 7) Mr. lttfi has expressed that any development of Pair Island will romlolicato the traffic problem of South gayQhore Drive, to a point of disaster. So it is imperative that development of the Xc1t nd Cannot be . . to leek for en imaginative trans... porttttion device which will rot iepone is hardrsl:ip to the Coconut Grove community. 'rhe high p>: ice of l..nd, no matter if they talk about 4 million or 9 million dol.lerss -- and the r ttbscquent development will permit the construction of such a possibility. My coement 0) I don't think that we, the planning Advisory Board, has to look to the legal part of the development. Our consideration Should be based on round planning tji idclinea no matter if it is n-1, 2, 3, 4, 5. The 1egel bettlo will go on no matter what. Our recommendations are on an advisory capacity only. My comment 9) I think the zoning appropriate to Pair island has to be a different one from a3.1 existing today, and that as vs did in downtown Miami whore sea created five dif5 erent versions for 0-3, A, D, C, D, E, we should in the case of Pair Xsland, recommend the establishment of a kind of 1te3 zoning that permits the appropriate stoning, the appropriate type of devO pr ant suitable and compatible with the adjacent areas which provides for imaginative design as to combine high structure -- ray one or. tern, maybe limit to fifteen to twenty stories, ample open apace, accessory or auxiliary businesses to avoid cxtra business activity and buniness traffic impact. And also, with a trar&z,.nrtati.on facility ouita e, `'eanib)Q and practical which avoids and oe..cguarcis the adjacent areas with the traffic congestion of South alayshore Drivt•. I know that other Board members have t•.o express their opinions but I believe that we should drank about sanding this back to the Department xor theta to study a r, �ecial. zoning Classification to Pair Xr31.:nd. X believe there is no ordinance in existence today that is suitable to the development of that island. Aa far es t h3 part X considered 3D, which refers to the properties frontiiu.3 on and adjacent to Macaws Day, from Osceola Canal to, ;+gut net ineludino t h A t'ercy rlcs _:.t.n.l, I also think that the rolreae% to Re:i i.e not the h a.st uoiuti.cn end that the Department should al o :study the type of *zoning c::.eneificetion that mill act as a buffer between Fair Island and t;ha r:-L. Mr. Gann •gin - m s Y n; Lnow, .i lot of thissga have been said horn toni•'tht ;+1;7it; the ditl'eilene t.yptes of 40e0lopeeet and what they, would l.00% like, and oven tl emen it i:: is►.port:aut to haw vow idea «l i3- tli.'u ah 1U, 1974 Item 3 PAD or whet it wr,etvi i_e,oe likes with 1 .' and wltttt would it Look like with it-3. The enl.y eon:ddernt:ion that we have here tnni.ght in whether we're caning to reduce the kem ittg from Het.; to ft- 3 ! We'te hot eennideri nq thn type of development, anti we_'re not approving to type of tft'velopmenr., that I believe wi.11 have to come in front of us again. Doesn't it? Mt. Acton? No? Mrn. Aleee►eder t I think if it's rolled bark to k-3 es Mrs. Pornitndne dirt point eaut, thn way the n-3 has been changed, it goes before the Zoning fhard for coneitionel use, but it glen has to havrs Site Plan Review: development tstaedardtt -► Mr. Dnnnenberg t Okay. My question is, if it stays li-S, any type of development there, doesn't it have to come back to the Planning Advisory t3oard' No? the name thing? Okay. Mrs. Pest:nar►de : tune. Chairman, excuse me, did yota say that I raid, that I recommended it to R-3? Mre. Alexander: No. I said that you said that the R-3 wes amended. Yes. That's all. 1 was just pointing that out. And an to how it was amended, but it would go to the Zoning Board, which wan your roint. Mr. bannenberg: The consideration here then, is only to consider whether we are returning Pair Isle from Rr-5 to R--3, and the other properties from R-4 to ft-3. 1 can toll you the one thing that bothers the hell out of me, and I've said it many times, I've said it since 1 started here, is that we get a problem like this and I do believe Very much in compromising. I really believe that people when they sit down together and honestly work together, they can compromise on something. I know that the developers hnve compromised on many things. I think the community has compromised on some things, hut 1 really believe that if there is an intention of 'meeting of the minds' and you get together, you can work something out that is feasible for everybody. But the thing that bothers me is that every time, and I said this during Claughton Island, every time we got a developer coming up here, we get the Planning Department, let's say, going against them, all I hear is 'it can't he Bonet' 'it can't be done!'. It's very difficult for me to accept that a country that has people like this country has, that can put men on the moon, that can develop the things it: has developed, that they canc.ot meet a :solution to the traffic problem! The name thing was done in Cl.aughton Inland - that they cannot sit together and get a solution on the type of development or the way that the building is going to Look that's feasible and aeceptable to most of you sitting together. And I believe tb;et the people in the Planning Dcpartmeet are professionals, but it always at.riken me, why don't they sit together and say 'this Le one way of doing it!' Thins might br another alternative of doing it no this Board cannot jcant; say 'well., this is what's going to be, and this in what.' u net goin'j to bet'. Thies bothers the beck out of me. And thin hapeens moot : of the ti.nie. I really believe that the problem can be nel.vt'ci. Meybe not to the liking of everybody but rscamething that is fo a s ible to 1 to t of the people. I've UVOn it done: before,, and x )now it eon be done. All I can ;:.rah* is, if thou was li-3 or R*.4 and th • .lave*l+,pvrs; were up in front: of ue auk ing uo to turn to an R-a or zs►:yf:hirsq a+l-#set, 1 would ci z.isy '1n0' 1 But that la not the question here tonight. The ctueetiwn here tonight is, bare is an R-g, .113- MFarcli la, 197E ttan 3 PAR and you're tryi n'3 to turn it ciciwii to :n it' 1. I've 'Venn vole Dt the rlrstwtivju that tir.. 1)e(t1 hats, anti t nat-t Ionic of thr proposals that Mr. r,:alhoun Wan, very beautiful, very rlifr'erent, r. think you ought to consider very much whether you want on island that's jtti t q tnq to be . . . rc it ,1 tcl y across or yoti Mrnt►t something with more open hpaces. You're all na►yin R--3 and I don't really believe that all you peopl.c out there understand what n-3 can be done with, with a conditional user_ 1 r think many of you do, but I don't think all of you do realize what rrr.,n be done with k-3 conditional. use. All I can tall you is that the developer said his goal is to provide the best development under the existing zoning. I feel from my point of view, and a view from both sidt!s, the mainland and the island - I don't agree with turning the zoning back. Period. Ht. Smiths My greatest concern is for the traffic flow on I3ayt hone Drive and what would occur it: the developer were allowed to develop under the 1t--5 to its magi.nn i potential. by the same token, 1 do not believe that an R-3 zoning would be equitable to the developer because what you're doing here, you're cutting his allowable density in half and I do think it's an unjust: taking of property. Ate far as the property on the mainland, 1 basically can see no reason for wanting to change that property from R--4 to R-3 whatsoever because th:!t area 1.4 there its already developed. Most of those buildings have been built on •- Coconut Grove is changingl I would not like to see the R-5 within Pair Isle . . remain Rr-S and there has to be some solution to it, but I don't think R--3 is that so lut ion . Mrs. Lichtenstein: Mr. Luft, I'd like to ask you a question. Could you tell me the percentage change in traffic volume on South Sayshore Drive since 1970? Mr. Luft: Since 1969, December 16th,1969 the traffic volumes have increased from about 13,000 to - well, Let's take the directional flow -- from about 6800 vehicles during the P. M. peak hour to 9300 vehicles during the P. M. peak hour, and in the eastbound :horning traffic, it's increased from 6100 vehicles to 8300 vehicles. It's a 23% increase between '69 and '73 and a 1.0% increase between '73 and '75. In effect what thin omountt: to, 1.s there's been about what we've bren experiencing throughout the County, and it's a 596 increase per year. Mrs. Lichtenstein: 5% per year? Increased throughout the County? And since 1969 then, it has increased 33%? Approximately? �lx•. Luft s Approximately. Yes, Mr. Dories You're laughing Mr. Luft. Well, you know that I'm A poet at heart en4 1n engineer by profession, and as a poet you }nog,, you 3.iko to dream. So I'm going to have my first dream here. which is e:.vc ybocly'a drat:uu. I would like to ace a park on that Do we ar ree on that? Thia in the real good use for that inIc1414. Al park. May. PJc t a nost3.ons do I hear tan million doltarp? PJi.e,,,? !low about eight:? Now, I bacone an engineer and my mind bogi.sey to function, on fact4i and rea::un. Sa 1 hive oetablished fact 4L, Thy,. dream of z park 04 that tole atvurdi TheCity b ;n't flint t i o ranuy. •'heJ:e3 ins no one c;i.nglc per: on or pcoPW that will rut kW, toot 'Ana of looney - ci' ht, ic.ye s million, whatever., So -11.4- Mtn. oh 1°, 1976 Itom 3 PAS i Wr' etni,n►>' tip ;,1 enr1 with the. t't;:1i, r1r'Pam of iem'tfin n botut'ifui. Park t he t t.. Mr. tir11'`Iftrtlbr`) r : ti7tr uee me, Mr. node. too you know that thin w:f': pet. on the, ballot by the city of Miami? Mr. n. Al xandry_ t Yes. Mr. r'.orje,: t know it. So now, I'm going to start + stablinhin ftetn which is rly way rC reasoning. My neconcl fact is, in there any question that need -}ring in going to be built on that Island? Do wr: have anybotty to nay cometthing? Fact :H2, stsmothing is going to be built on that Island! Now we come to part 03 ► WI1M is doing to be built on that Island? Who in going to develop that /eland? Simple fact. Somebody that can drvelr17, it from the erconomical, point of view that at Leant will route antis meet, and at Leant will break even. To we have any questions aboet that fact? Would anybody try to develop that Island and say, 'I'm going to lose n c ney 1 ' No way. So, we have agreed on fact 02 that somebody in going to build nomething on that Island, you must agree that_ whoever is going to build so.xe!thing, will have to do it with round econrnic basin. ,ro now we have three facts. Okay Now let's go on to nnaiy:c other facto. Pact- 94, we're considering here two possibilities. One under zoning R-3 and another under zoning f-5. One will give us an economic feasibility of many, cheap. Another one will give us an economic feasibility of lest than many, but more expensive which both will be economically feasible. Okay? You can build many, cheap or not so many, more expensive. I'll give you an alternative or an economical point, give you a solution. I'm saying you've got to build it economically. Somebody has to make endu meet. Now you can only build a lot of very less expensive units, and you know, intake it up in volume or you can build less volume at high prices. You're going to have to reach a point of money — of dol ens - you have to, otherwise nobody is going to build it. Remember, I'm going on facts. And 1 have to establish the other facts first, The fact is, you only have two possibilities really, there. 'Vhere' n no int n rmec1iate. If you put it at It-3, you're leveling off and you have to 2'ave X Ftmount of units, and that developer is going to have to uric, the maximum amount of units available to him in order to make ends wet, 'That's fact 04. I.et' x; go to facet 05, traffic. Rvorl body has agreed on thin di neussi.on that going to R-3, nnd allowing - you're going to have to allow it - if you go to R-3, the developer or whoever is going to n.'ikc' that, in goi_nq to make the Lest use of that land as possible noel going to try to got that 1000 units that you will allow hint tenc1rr 8-3. : n wh t in the difference in the traffic eitultten 11t► ck voloping 1000 iuiitn under 10.3, or developing 850 unit:n under t t!,: tiifi.e+t R-5? NOW, chit, its the eirat time I have mentioned tho iw ditied It--`,. up to t'ti i point, 4 Wive may heard arguments of 2000 unite, .4144- March 1.0, 1976 Ito 3 P*1 And Ws it; tart the feet! The 'raet i :t that. wt' COI ft)rc!t' nomOlody who i.i 'ih i ter# f.n develop that Islam! tr., a m 1.i is test plan by whieh will probably three under 1000 unite. Pow you ern ctht_ed and give him K-1 how. i'i.rtt+t You are forcing that developer to make it 1000 unitn. You are not avoiding the trnftie problem! You :still have the u:irn traffic problem' Pact 4`5, traffic in :i problem, regardless. tart: #6 - lft: eoVerAgo. Nbti we begin to get into the, architectural . . . Of the project. What do you like better? Do you like to live at;tonet hor`!ge s and bushes, or would you like to have a lot of green area? it-3 will gibe you that. A lot of hedges and "basher, because the developer in going to hove to develop that way' tt-5 modified, there is a posribi.lity that you may force that developer to do i lot of beautiful land&raping to the project. Pact 46. Architectonics! Here, I'm gcti.ng to quote one simple thing. I'm going to quote Mayor. Forre, as a matter of ftct, and he said one simple thingt'xoning doesn't make beauty!' go matter what you tone! If you don't have the proper architectonics you're not going to get anything beautiful because you rezone or because you put on this type of zoninrr. You must have control of your architectonics. You must have contr. el of the developer itself to make something beautiful. That's a fact! A small fact is the last item. Legal. I don't think we have to he scared of any legal points on this Board. That is not our problem. 1 don't think we have to be threatened with law suits. That's not our prohic:.n. We're here to plan. I couldn't care Lees if there were 10,000 law suits in the City. We are here to plan and do the best for the City. We Shouldn't pay much attention to that type of argu:nontu. llowever, when you find a situation like this which is very unique, okay, so we have four law suits -- R-3 - when we're talking about eight million dollars, those people who have put up that money, they're going to keep suing! They're going to keep on that because they want to get that money back! 'here's no two ways about it! It's a fact! If you agree, if we can do something with them, we're going to start . . law suits because people will begin to see that the money is coming hack, and we're going to start getting solutions on legal atfnirs. Now, there are facts which nobody can tell, me, I am not right. Okay. I en:nc hers with a very oven mind. I have atwayu been, on this hoard. I have tried to really move the real development for the welfare and the benefit of all the poople. I've seen tonight several hard facto. It, a very unique ronition we have with Fair Isle. It's nothing that occurs every day. Therefore, when something unique like that comes in, you've got t.c+ think unique decisions and unique attitudes. Now, 1 ':hint., I really :.liink Olio community, Coconut Grove con:utunity bee, at thin parei.cular moment, the biggest cluuwo to develop t:ir.tt: particuicr Ialo to the real. benefit of the community. I thi ek that you wopl s c:m rca1).y determine tine what that developer has to ci0 on that irle. You have the eee on top of him right new. Rut: you c•attn;,t taut- him agili.n ;t the wall.. You can got that developer right now CO - %a!'a.•c'miu.3, That dr velopor hen at: atahe, and I'm timing you 1:ttc'w, two dad twt3 ir: faux, hen at; stake X Amount of dollars i»vot ' 'i. Th.ti lievel.orv,r is not by any t v!ium, or !kiss not, ft1 rcth 10, 1976 Item 3 RM •9 WI* Cr) throw that hionrty Oft' The way you handlo that e tho wny that ydrt got in rorr.jrmt7I:i.Ah ,Witt these ,1o;n1r_, y►ciu CAD force them to give into tltitrgq t_o bring dawn to fl! 0 or f1t10 >niit'i to do this to do that - and tt►:.t u- n has to do IL •- i.i clor_nu't make sense that they got ibt:c, furthr r Legal battles beeartue of eight million dollars, i0 "re interest - t±h it'r a lot of money that clay by day, goes, 90 they art~ in tte bet;t torsition. X don't know. 2 haven't even talked to them. 7 don't even know t1lm. fttt if X wail a developer, 1 would be in the beat position. to negotiate rune development there with a concourse of thc community of Ct.cctrut trove, and the City of Miami, to do the real, nice -looking thing that everybody is looking for. I think you should give a lot of thought to that because that is my conclusion of tonight and x tua ei fired believer of master planning. I think that we have been here for two years,, we have accomplished at lot on a lot of: things. There ii s no rule that hag exceptions. Un ortunyl-.ely, I think that thin Isle, this particular Isle is a little exception to the rule, and has to be treated differently. 'thank you. Mra. Lichtenstein: Mr. t3orja, to go along with what you're saying abut t1: t citizens, the civic ciubn of Coconut Grove to get together with the developer, i uiideretand that that has been done. The developer did mention the,t he has been tasking to the civic Associations. I don't know that any::hitig ct:.me from this. Mr. sor j a s x don't know, I think that if we on this Board or on the Commission level, we put the pressure on the developer to set some kind of rules, to modify that R-5; not to develop the property to 2000 units; to provide certain amount of amenities - Mrs. Lichtenstein: You do not feel that this would be pouoibl.e under a P.A.b.7 Mr. Borja: x do not know. But what I'm trying to say at thin stage of the game, the R-3 is not the answer. That is what I'm trying to say. If I hadn't put up the facts as Z put them to you, you see., I wouldn't be talking about this; I think there is a great pots ibility of doing something, but R-3 I don't think is the answer. Mrs, Lichtenstein: Mr. Borja said, he did not feel (if I understood you correctly) that under P.A.D. this could be acoomplished. Mr. Tuft would you like to address yourself to that? $rn. Alcxanaer; Yes, I would like to ask that question. Mt. Luft; Under Planned Area Development, any property of three acres or more, wee so situated in a unique environmental situation, each n , we might find on the bayfront,, qualifies for an application atouid thA developer so seek to apply for a Tanned Area Pevelr'pu ent . h Planned Z tea Development allows u3 to rodi1 i the density; the anc; th, : coverage; the height, virtually any charact:er- i.rt:io of that dintriet tlhat we see fit, subject t., a public nearing. Mrs. Alexander: That's wttat t would ii.ko to know. Under 11.3, an amemted, and i r it' n eduptr•J, a P.A.D. under that would allow on aid:; how ri.7ny unite; -1l.7 • M rclt 10 1976 Item 3 PAB Mr. Laft t nfj mmny to you saw tit to create. Mrs. nlex.►n•lor. t Wall, under the at-3 o rtlifane , tVtti with the bantam proviAons t,omcwhere in my head 2 clot the ickt that they tbuitl rlo asp high an Mr. Luft t 4( units an acre Mrs. alexandert 48 uni.tn pet ae're, and there are 20 sere , 80 that % oeld be i tiw it ] 000 t r1it: a. tor. Loft: If they built: all. efficiencies. 'i'hen they could build 2000 under 1t-5 if they built all of 'ici.cnciea. Mrr . Alexander: But then the pbnus provisions would also take care of .. Mr. Luft t What you could do with the bJrsua provisions as we have suggested, la that yea can incrl:auo the floor area ratio st►o that they don't have to b►ti.ld such t s,wa1l building, and in effect, build Larger units. Luxury units. Mts. Alexander: 'That's one of the bonin provisions under P.A.U. How much extra floor area ratio de you usually allow for a larger: apartment: larger units? Mr. tuft: In the ltricke11 area we have a precedent for that. In the R-Cie district we allow a bonus for larger units for just that purpose, to reduce the potential al density in favor of » Mts. Alexander: Yee, but how much of an increase? Mr. Luft: Thu bonus in P-CB is - Mxs;. Al.exauder: You're recommending R .3 for this, so that's not germane. Hr. Lott: I'm just saying. You sacked what the bonus could be. We could make the bonus an jtl,iny we ~rant under P.A.D. Okay? The only other place we have: a bonus nui la in the R»CB, and I'm just t:aying, if we want to bz consistent. in our boaus3es, we could pattern it after that. Lnd tha b. sus in that case, is .015 for every 5O square feet over the tainimam unit bare, of I think it's 550 :.c;uarc tact. See? tz., to a cartai n 1:, :;:1`i,►tii`.1 twit Axe, but we don't have to ht ve t i.t maximum. Sou, we're completely free to structure this thing to ac :c::►.pl.iah what we want to accomplish. Mrrt . Al c xatrder z YE evori►t,ody iv tiniahad, Mac. Bode, I would please auk you L, take the Chair since I'm Vice. C aixraan and unfc . i.unatety ta: . 1c.,c3:c.f.:i.lttx in not with us this evening, because I would 1ik.4 to make a stt,tt:ement. I will echo aamo of ties things that have been said before in terms of trafri c and tile legal 1►,-►t:Llo , Y.:E'cautw I don't think we 11004 tti &'t novrt% oar!;otvcu overly with the 1:3w :,lli.t situation. Wa'te not ill it Cen L t of La/ ii : ! Sea: +3 p l.u:i Lhe t ;c:t trout of theme douieiona that: have boca r4•r.'l roc1 to, area 19rsj alai t:'p any w►derrtanding that the. eolilr,lc.;=ION (07 t'hct Court=u leave: c)t,trcyc'd .. 4)re:►t dcs:►t sivae the era of *.. nnu kor ,anti lir, IJ:tsit r ou on :►fcl ;AO to4:tb, isiitd that ci1 z f't1:t !saw. 04:134,1 rl.tltt :. awl witty mord tj,jtt. s cunei.deration. March 10, 197E Tim 3 PAD 'i'ht. tr..tfti' ur)s1t'tn mr. Now, il it's po:;31ble Lhat: the fm3,t which t nilren in Mi. !he 10.st. ronis)q Jot tbi t., wt'''t in the midut of a tt.a:'t.,./. Plan at this point :end in ic±rmr3 or thr. Cottle, wht+n you bavr :, Comernsive Marter Pl.of, everywhere along the line. it tptn iiph.::l.cl. we're under d ictu a from the utaatc to t!e me up With a Meager Com,arr-hennivea Plan for our City by 1979. We'll have it l:i1 nix months. Thin i:; part, this Coconut Grove Mantet Plan, is j part end parcel of Lh;;c Comprehensive P1 n and it :iddrenscg itself to all things, and x tre1 that we need to implement it. Now, that's not to soy thot R -1, as amended, cannot be further amendc:i. R-4 c"t'tainly : crnmr inappropriate .beeaunt3 of lot coverage. R-t, 1.1 mwni. c:utly out of the tluestit h for Pair Isle in my thinking arc3 the R--3, as we amended it, will allow the developers au they no stated to go up to apprd:cimr.tely 1006 units, which they plan to do. They ray thF.y' 1.1 bind th^ :lr e_ ►.ves to do this, but 2'rn a little it worried about these legal ciocu:ant:t that somehow haven't boon forthcoming in other caner where the_ developers have come before us. We don't have any real pro7iLion in our zoning provisions for these legal convc.aanta. The way our •rcnitig lawn are stated, the developer himce1f must come tip with this Legal. covenant. Now, maybe we need to do sow e amenc7iDg in our laws. Maybe the kinds of thins that happen in Toronto which is a fantastic city and the Mayor it trying to fi.t►ci out things about performance standards there where thoy allow nothing on their islands. Nothing! And where no P.A.R. exceeds 2.5 oven in their downtown metropolitan area where with bonuses thoy can go tiu high as 12, and that's a1lt Everybody points to Houston as the city of no zoning, but they have restrictive covenants and they have subdivision control. There it absolutely no subdivision that gets put out unless it conforms. They bave t; Planning Department; they haven Planning Commission; they have a Master Plan, and every subdivision trust conform to that Master Plan and go before: a particular committee and then before their Commission to be voted on in that way. !low maybe we need to recommend that we have these kinds of controls in addition to the zoning. but at the moment. we have a zoning code and we can't enforce legal documents. We could hope that they'll be forthcoming and a tybe the Commission can hammer out there things, but unless we have some fr; ml of reference, some guidelines, and Y was of the consitlerecl opinion, that when we passed the R-3, as zj.ten.i, d, and this arca which Last 20 acres which could come t'nd: r P .A.D. they could work it out with the Department, come up with a very creative kind of plan, it ,,,•c.ms to aye, and that of Churns, geed W.te P:t.,:t R•:.view, Fteethetic review, on the part of the Urban Review noatrd Go that there is a bu. t:...ring out of agreements, and tree is;a;...o)jL: and bonuses, and 411 the kinds of things that are necessary. Ve x think we need some frasr:' of reference here. We can't let this go c.n much longer. This thing Las been going on far too long, and R-3 .as it has been am tdod, could be a vehicle. ngroo will* Mr, rori . The eeonamic feasibility Le very (important a t ana cn;i or th:: m41.1* t 1it,:g:; w21:1i: we u:ac!rc;;41v4 in the Master Ther,: kayo i.)Ci'm1 c!o)sit,?;tti(' c':)4:uit ant:; all along the way, and no wait*re to it. Ow of t:isis, Iloacad dull any ;property owner should he depx i.v 4 of 4 coed and norJm4 1. u;:e of Lis pXnperty, and 'jot a docent profit, t:.YL by Lhc! tolt4_44, want developers corm g ie ropieq the L;e4, what's iicpl;rrtmed i. , 10,a; what happened 11 `a•- March l{i, 1976 Iton 3 PAS •a in 1.96 II wire. haf penr.cl in 194! 1 1915, ehoul4 have ?wen addtr.ur d At that tim mu: thnso wire different tin,,:*, thnnrr were different Comrliirainn:t. the Planning 1'.oard that Uwe speak of 1,00emly, and the 'c n1.rsg ennui, in not. thin 3'aard. Thin f;oard in a relatively new Board on itn third year to deal with nnthive but plans. The ybning Board ti _•alct t: th judicial m:tt:tern of variances and conditional uses. It's our ree}xtnnibiiity to plan, and t reel that; we have to get tome fratt%c' of reference And that'm my statement. Thank you. Alexanr er. Mr. t,,orja: I return the Chair back to you now, Mrs. Mrs. Alexander: In there a motion? Mtn, Fernandezt Yen. I to the Planning D p rtnnnt t:d make in ui:cty d«ye back to us, creating classification especially directed want to trove that we send back �► study andsend i.ta recommendation an appropriate type of ,zoning to Pair Island. Mrs. Alexander: In there a,Becond? Xs there a eeeond? If there is no second, the motion dies far lack of a second. Is there a cuhstituto motion? Mir. Detnenbe: g: Yes, Mme. Chairman. I will make a notion at this time. to dsny t:ha change of zoning classification from R-S ( igh density multiple) to R-3 (l.ow density multiple) for property known an 1?air Xsle, and 1 also in the name motion from !t-4 (medium density t►utliple) to R 3 (low density multiple) for properties fronting on and adj:::cent to Biscayne Bay, from Osceola Canal to, but not including the Mercy Hospital property (Matinees Street, extended) all within the Coconut Grove area of Miami and to recommend this denial to the City Conmliiieion. Mr. Dor j a: I second it. Mrs. Alexander: Is there any further discussion on the motion? Mrs. Fernandez: Yes, Mane. Chairman. I want to ask Mr. Dannenberg if the recommendation is to deny the change? It's obvious that you agree to have Fair Isle developed under R-5? Mr. Dannenberg: Yes. I don't wont the zoning changed. Now if they want to coxio up with a new coning more appropriate Cor the Island, that's fine. But as far as changing from R--5 to R-3, I don't think it:'t, proper. That's why I'm moving to deny. Mr. 8arjr: I want to amend the motion. Mrs. Alexander: If you wish. An amendment is in order if it's germane to the motion you certainly may amend the notion. tilt:•. nor ja s I'm trying to think right now. The intent. Mr.n. Alowander: I will reetate that: the motion is to notreeonunene to the city CoA.m:e;;ion the proposal of the i'tanning Pereirtment to roil -Wick (-WI mining on hair Yale from it-5 to R-3 Anil the cant i quoes poop,.. t: i p:i on the mainland that are it-4 to M•3. 'tog; been 1UL Ve4 and ttt,N.at.td, Ml2n- Hard: 10, 1976 Itomt 3 PAR Mrs. 1'rrnanden t Maw. ttia i rmtin, I want to .attend thin motion, wdcti.nri that t:hr Tanning nepartment mem with a new zyrtnirtg ordin:,ncr., rrnrrciatly deni.gnntt rr,t• Fair Inland. Mrs. ? 1" snc ert In ihrrr a second to that amendment? Oar' moment, I think that that really elver;n't addrenn itself to this motion, tars. pernanrtcz, bocaune it:'n a neparete motion altogether. Mrn. t'erna.nden t M. Chairman, I think I asked prcvi.ounly to Mr. Oannnnberg if that . . the possibility of having a new zoning ordinance, and he says ['On up to the DepertMent. What I'm doing in simply stating in our recommendation that the Department come up with a new ordinance especially designed to fit the: ntedu of Pair It).ignd. lira. Alexander: Well in essence you're repeating your first motion which died for a luck of a necor d, and 1 feel I would like to ask Mr. Anderson if that is a correct amendment? In my view it in not. It is not an amendment to the motion to deny the rollback. motion. Mrs. rernandez t If I may, Mme. Chairman Mrs. Alexander: I'm asking Mr. Anderson. Mr. Anderson: It does seem appropriate as a separate Mrs. Alexander: As a separate motion? But not as an amendment, is that correct? Mr. Anderson: Right. Mrs. Alexander: I'm sorry Mrs. Fernandez, but it is not an amendment to the main notion as it stands. So if anybody has an amendment, that is relevant to the notion as proposed — Mr. Smith: I would move that we delete Fair tale from Mr. Dannenberq's amendment and only deal with the property on the mainland. That is to delete )rair Isle Mrs. Alexander: Is there a second to Mr. Smith's notion to delete the properties on the mainland from the motion and address only that part of the motion which deals with Fair Isle, Mr. Smith: Repeat. To delete rair Isle from the motion - Mire. Alexander: I'm sorry. To delete Fair Islet and addreau only the property on the mainland. In other words, to leave the property on the mainland at 1t•4. Mr. Smillh: If it pashas that would stake Mr. Dannenberg'e rcautnmondat inn to deny the property on the mainland rolled back. Mre. Alexander* In there a second to Mr. C*ith's Notion? mt. ner. j u s I'm going to second that. 4_21- Nacch 1.0 1976 Item 3 PAD neparatn going to together motion. Mrn. A1exandt,t: '!'hrrcl' s n !trrr:nc1 to the notion tart stmr. r1 010 prIgvinns t•►1:trh in to delntr the reference tn Fn i sr t st].r in t.hn tnr,i. i nn and ronta ittrc3 the rollback tn ttr..ny the r ltbnck of the main1.nnd, :►nd leave it et R..4. Mr. Andersen t May I make a sugle ration? That you the two and then make separate motions. Otherwise, we're TA quite confused. Mrn. Alexander: well., they wr+nted to vote on it but maybe it would be better.. We can do this as an amended In there any further discunsinn on the deletion? Mr, Rollin: Not on the deletion but a point of information. Are we to vote on Ittntn 3 as it is Mrn. Al.exr,nder t What we're voting on right now is to change the motion to read, that tht y are denying the portion which deals with the mainland. Mr. Pone: Thin is my question. item 3, to reconsider or not? Mrn. Alexander: They are separating it. Its other words, they're deleting Fair Isle from this. The motion is to delete Fa3r Isle from the original motion. Mr. Rolle: Is it proper Mr. Anderson? Do we vote on Item 3, as we discussed it? Mr. Anders on: You can separate the two or you could votes on it together. I think it might: be easier to separate them since there seems to be some difference - Mrs. Alexander: Then we'll withdraw all the motions �- Mr. smith: Mr. Dannenberg, would you want to restate your motion? Mr. Dannenberg: Okay. I'll restate my motion in two parts then. I'll make first a motion to recommend to the City Commission denial of a change in zoning classification from R•S thigh density multiple) to R-3 (low density multiple) for property known as Fair Isle. Mee. Alexander: Is there a second? Mr. Rolle: I second it. Mrn. Alexander: Is there any further di eceeston on this notion: If not, will you call the roll. please Mr. Acton? (pi.RAR : TURN MO March 10, 1076 Wm 3 PAP Mr. htnnrnher.•'{ cti"%rred the ftrllnwittg t oti tno rA it•.h adoptions m' Motion to recommend to the City Corminnion denial or a oh,ngr in Poninn classification from 1t-5 (high drnt:ity multiple) to A-3 (low denni.ty multiple) for prnporty known an Fair xqsA. Upon being neeonded by Mr. Rolle, thin motion failed to pass by the following voter M'1 S : Messrs. lorjao bannenberg, Rolle NAM: : Mmes. Hernandez, Lichtenstein, Alexander M. Smith APS8NP s Mrs. ttockafel.l.ar Mr. Acton: Motion fails 4 - 1. Mrs. Alexander! Do we have a reverse motion? i Danncnberg: X would like to make another motion to recommend denial in zoning classification from lt-4 {medium density multiple) to R-3 (low density multiple) for properties fronting on and adjacent to 8ise.yne Say, from Osceola Canal to, but not including the Mercy t'orspital property Matisse* Street, extended) all within the Coconut grove area of Miami. Mrs. Alexander: Is there a second to this motion? Mr. Smiths X second it. Mrs. Alexander: Mr. Aannenberg, I'm told that we must have a positive motion on the other Item firut. A motion is in order. Once you hove to deny and it gets defeated, then you must move to affirm. That was vh:tt I was trying to elicit, but you jumped ahead. So, is there a motion to roll, back the zoning classification from R-5 (high density unit:i.ple) to R-3? Mr. Smith: May, so • there' a a motion on the floor - the second motion? Mrs. Alexander: No. The :notion failed to deny the rollback ma t:hv floor is open for 4 motion right now �* Met.. Lichtenstein: Mme. Chairman, i make a motion that we reconsidcer a cluinc;n of :oninq classification from R-5 (high density snullti!Ae) to R-3 (bow dannity multiple) for property known as lea i r t:a i:c• . Mrs. Alexandr is to there A second? lir, amit'hs I second it, March 10, 197t itom 3 PAS Mrn. A].t1xendr_ r t it ltan been moved and seconded that till. rhr.onrs i.dorot i on of thn cltan►jte in uoni req classification from R thlgli r1f•nOt y multiple) to It-3 (low density multiple) tnr property known as Pair t.r;ic , he (rented. is thhrce any further discussion on thin Item? If not, Mr. Act:Mn, will, you please call the roll? Mrs. Mary Lichtenstein offered the following :.e elution and moved its adoption: RnSOr2.`J7`1ON NO. P l'3 10 6 RUSWArION MCCIMENDING A CHANGE IN POt: it7G CLASsI ICATIOti MOH it-5 (nzcfi DENS1 i 1.ULTIPLt) TO 1 3 (LOW DENSITY MULTf'LE )2'oR PROPERTY HNOwN AS PAIR ISLE. Upon bring seconded by Mr. Cyril Smith, this resolution was passed and adopted by the following vote: AYES: Mrs. Lichtenstein, Mrs. Alexander Mr. Rolle,, Mr. Smith NAYES : Airs. Fernandez Messrs. Borja, Dannenberg ASSENT: Mrs. Rockafellar Mr. Acton: Resolution passes 4 - 3. (ITEM 3 CONTINUED NEX'r PAGE) Mire): reh ].A, 1976 atom 3 Mrn. A1' x:tindet't 'Dhr t'i_r r in ready fora notion t31t I.h' prop•`rl: ir!i r.:ont:i.cpiours on t:h►l hei11tAnd. 11r. Danrinnhr_relt 1 recommend to make a motion to deny tt chnngc of znniia4 clanrrificatinn from R-4 medium density multiple) to R-3 (low d»•.nnity nnilti.rle) for prop,.!rtiet: fronting on and adjacent. to 3i.^r'.iy► o Tay, 1 rom Oncrola Canal to, but not including the' N.^te:y 11.3 pital prap4:t.y (t1a1 issec3 Street, extended) all within thn Coconut (rove area of Miami. Mrs. rernat,c3ez t 1 second it. Mtn. Alexander: Is therm any further discussion On this motion? The notion 3.s to deny they change in zoning. If there is rio further disctinci.on I would like. to, nine° 1 did not address myself to this, auk ter. linrja to again take the Chair. I do not think that w, can separate these properties out and since thc: vote 'has been to roll buck refs Isle, 2 think the contiguous propertieu ought to he doubly protested and I certainly feed that the lover density nhouid r nply all over in this area because the one dependn on the ottt•.z , and 1 ould certainly strongly urge to vote "imp" on this natticuit,.r Item 1r;:r..ruoo the motion is to deny the rollback on the contiguous properties. Is there any further discussion? tir. ];aria: I'm going to transfer the Chair back to you and 1 have a question? Why did we take out from the original Master r3.an then, all the Mercy flospital property which was intended to be in the Master Plan an R-4, down to R-3? Mr. Luft: Why are we what? Mr. sorja: Why aren't we considering the Mercy Hospital property AS it wan intended in the Master Plan? To be rolled back also to R-3? Mr. Luft s No. We had intended in the Master Plan that the Mercy Eospital property be properly zoned as an Institutional Use, Mr. Dor ja s Was that in the Master Plan originally? mt. Luf t : If you see in herd, you'll see a znap that says °Institutional" right across Mercy )'spite]., and it says that R-4 w:ia the only vchicio we had at the Om* for r ccar.modating a hospital, bocxut 3 tb:4t w to the oni.y ciintrict that allowed them. So, it than lonod R-4. It had nothing to do with what was supposed to go there, but that's thou only way we could do it. Now wo'tre =lying that that'ti really not th:: wµy to Leo it: because R-4 will allow, :an t-ir. peen pointed out, nnr.c:y Menpital to build all kinds of thirlg that urron't relily into" neLed when ► e zoned it. So we're saying gnat the o:j. •y nbnuld create ►t * Iantitutiona], U;;2 District to ia.illrlto J:ac:k::ost ;s; spi.t.al.t to handle gerc-y Nos3pital and gone it . ecordisul''.y. Hr. noraa s Mon would you stand ma over thet t'1aet r V101 you 3tnvo then -i2 a- Mardt /0, t976 Item 3 PAU Mr:;. Aiexlndera Mr, 1.1.1f't', you might point out that We lrnttt t ocen{.Zy passed t l,i;t ihnt i.t:ut:tonai Urge on d flratd t"iannifit a►tion Of Roninri, and that it's lust been o'Jopl•hrl by i.hr City Commisnion, Mrt,. Lichtenstein: Not yet. the. Acton: No. It wnuld have to come from this Board to the City Corrmiu lion. Mars. Alexander: I thought it had First Reading. Mr. Acton: t1o. We're working on Institutional Zone now. We had a workshop .» Mfrs. Pernandez in quite correct, Mrn. Alexander.: x can't understand you. Mr. Acton: Alright, X sy we did have a Workshop on the Institutional Zone. If you remember, it was listed as an Item on one of our recent Agendas, and I stated that the need for the Institutional Zoning C16.ssificntion but it has not come to this Planning Advisory Ware for action or recommendation to the City Commission an of this date, Mr. >;orja: 1 sincerely think that not until we have that, then we shouldn't take any action whatsoever. Until we have that Institutional Zone approved. 1 mean, you're rolling back a bunch of property there, and thin one - they are still under R-4 - there should not Le any privileges* whatsoever. I would vote completely against it. Not until you have a definite Inotitutional Zoning Mrs. Alexander: Ye there any further discussion? Mrs. Lichtenstein: Mr. Anderson discussed changing conditions in regard to soma of the property on the mainland. I feel that conditions have changed since ISO, and the traffic alone as Mr. Luft pointed out, has increased 33% and does increase every year without the addition of increased density. Mrs. Alexander: Thank you Mars. Lichtenstein. Is there any further discussion on the motion to deny the rollback from R.4 to R-3. If not, would you call the roll please? (PLEASE TURN PAGE) -12G- nwch 10,, l976 Item 3 PAR Moir, Winn"nberh ottervd thr toilt,wLtti rnnolutlon and mdvrrd its Admptl.nn t RESb7,UTIo11 b1 NYINO eitttur1 OF ZONING CLASsx 'tCA'i'xbif rnoit it-4 (MEDIUM b NS iY mulaxPl o TO R -3 (tow DENSITY MULTIPLE) FOR 14-.0118VTInS rRO TINc3 oN AND AMJ 1Crt D TO bxscAytvi;; LAY, PROM OsCEOLA CANAL TO, fur t;OT =moire THE mnRcy fiOSP/TAI, PRot'x:i:ri (HALIssi sT=T ► nxvii. nnn) ALL WITHIN Trig COCONUT GROVE AtisnA OP MCI. Upon being second`a by Mrs. i'ernandcz, this resolution warn passed and adopted by the following votet AYES: Mrs. Fernandez Messrs: Bari ja, nannenberg, Rolle, Smith NMYES: Mrs. Lichtenstein, Mrs. Alexander ABSENT: Mrs. Rockefeller Mr. Acton: Resolution passes 5 -- 2 Mr. Robert rraurigt Mae. Chairman, may X ask you a question? X would appreciate a polling of the Board in connection with the prior motion affecting Pair Isle. X noted that there was an inconsistency in the position of some people on the Board. 1 don't know whether or not confusion existed, or whether or not a change in position occurred, and I would Lppreciate it if we could determine what the intentions of the Board members were at the time that they voted on the second motion in connection with Pair Isle? Mrs. Alexander: The first motion dealt quite clearly. The motion to deny was defeated, Then a motion was made to recommend, and it passed 4 to 3. Mrs. Fernandez: Mate. Chairman, for a matter of order, I understand that we wcxo advised by the City Commission to explain the way we vote, and X think it's a good i.c?ea if, at this point, each one of no at the time of voting express why we vote in favor of R*'3 on Pair Island and why me vote in favor of R-4 itt the case of the mainland. We were instructed by the; City Commission to do that. To avoid theca riding vary lengthy Minutes, if 1 recall properly. Mrs. Alexander.: And as far as the second motion which was to deity the rolt.sc1, on the mainland pun. ire:rn%nde t I'm talking about .. We have teen instructed l y iho City commiunir,:t that we, at the time of voting, otcnl.ain n«r votc 4P to avoid tlu.m from redLrtg vory lengthy Minutes of this Planning 4t1vissery board. Vo I think it will not take very March 10, 197G Stan 3 tltn tor t+.ach env or On WI -en wr voted, in fact, to roll bask to R-I Pair Island and to not rollback to is-3 tl:e mainland, that we explain why we dial so. Mr. Smith: That was a matter of choice, Mra. Fernandes. Mr::. Fernandez: Not a matter of choice - you had motion from mo before - Mrs. Alexander: 1 think i would Like to explain Mr. 7'raurig. It was a question - the: vote was quite a preview oomething, clear - Mrs. Fernandez: I don't think it was clear. Mrs. Alexander: 1 don't know what the mechanics are and 1 don't know whether we need to poll. the Board once again. Do you Mr. Anderson? Mrs. Fernandez: Mms. Chairman, 1 insistt 1 think it's necessary because 1 believe some of these Board members are not consistent with their - it is impossible to believe that we have been nine hours listening .. (interrupted) Mrs. Alexander: Discussion of this sort, Mrs. Fernandez, is out of order.. We are not discussing other Board member's votes. That is out of order. Mrs. Fernandez: I'm asking to do what we have been instructed by the City Commission to dot To explain our vote because I believe someone has been confused. Otherwise it's impossible to believe this is happening at three o'clock in the morning - after Seven hours* Mrs. Alexander: Fine, Mrs. Fernandez. Will you explain your vote please? Mks. Pomander.: I voted not to rollback to R-3 because I don't think R-3 is the proper zoning for Fair 1slandi Mrs. Alexander: But you voted to roll it back. Mrs. Fernandez: Not No, 2tne, Chairman. Mr. Smiths You voted to deny it, Mrs. Fernandez: Not Nol Not Cheek my vote. This is confusion here - no one can tell me that Z voted in favor of R-3 for hair Island! No one can tell me that' Chock the vote! Mrs. Alexander: Mr. Acton will you chock the vote on the motion to rollback to R-3? Ht. Acton: You voted to deny. "No" iss otb0 words. The voted "no". }tra. J rnandaz: Road the motion. ttru. hlehanfvr: to, road out the votes please, on -120- March 10, 1976 Item 3 th►, to t f re) te'f roll back. w Mr. Acton: Mrs. +l.mxander wet Soria, "no". Dannenberg "no" Fernandes "no" Lichtenstein "yes" Rolle, "yen" Smith "yen" Mr. Smiths Now the motion before that, would you read that one off? On the motion to deny - oho voted "yes" Mr. Acton: She voted "rto". Mrs.. Fernandez: How are you going to say that 2 voted for R-3 if x've been saying all night long that I don't think R'-3 in appropriate and this iu a public record, and anyone can read it, and it's perfectly clear that t have been saying all night long sinco before oight, I think, that R-3 is not the proper zoning and I explained point after points and 2 made I think nine points to explain why I believe R-3 in not the proper zoning, and that I think that Fair 2s2.and demands a special ordinance or zoning clansificationi My first motion was to create a special zoning classification for Fair Island, which could fulfill the needs of the developer and the oonvenience and the welfare of the adjacent property owners. And that was defeated! I don't know why. Mrs. Alexander: It was never seconded, Mra. Fernandez. Mr. Traurig, it's three o'clock in tho morning, and 2 think you're being frivolous, I really do. Mr. Traurig: I think it's far from frivolous. I would like to inquire, 2 noted that Mr. roll seconded the motion initially which would have kept the R-5 zoning - Mrs. Alexander: F+or purposes of gutting a motion on the floor, we do this all the time - Hr. Txmuri g: And then on the R-3 motion he voted its favor of rolling it back to R-3 - I think that I would merely inquire fromhim as to whether or not it was hie ftatontion to roil it back to R-3, although he had originally seconded the motion to keep it R-5. Mro. Alexander: Mr. Uo3.la, would you be kind enough to annwnr Mr. Treurij? t:1I' t votes. W. Rollo s Ho. l voted au is . . . exPlain MWs+. nlox:uute+r: no changed bi© mind and he doesn't -129- March 10, 1976 Item 3 PAD want to rxpiain his vote. That's a Mr. Traurigt 2 think i . . . understand • you said you changed from 11•5 to R-3 7 Mr. Aolle: t will not explain why t voted* tit, Tratxrtq. Mrs. Lichtenst eint . we, in seconding motions, it doesn't necessarily mean that you approve them, this man be just sily for a matter of discussion if a Board me reber chapeau and ha La wall within his rights. Mrs. Pernanr ex: We. Chairman 2 want to keep it straight for the record, that x ran ROT vote in favor of R•3. will show. Mr. Smith: 3 apologize Mrs. Pernandes. Tho records ADJOUNT: Motion was made, seconded and unanimously arproved to adjourn the meeting at 3:05 A. M. Thursday, March 11, 1976. 430• March 10, /976 Itan 3 DECLARATION OF cAZCTZVE CANTS ANON ALL MEN AY THESE PRESENTS( THAT S0UTABABT FIRST NATIONAL DANK OP MW4Z, as Trustee, being the fee owner of lands described in Exhibit "A", attached hereto and made a part hereof ("the property"), makes the following Declaration of Restrictive Covenants running with the property, specifying that this Restriction, during its lifetime, shall be for the benefit of, and a limitation upon, all present and future owners of the property and for the public welfare. The property is presently the subject of an application pending before the City of Miami, Florida ("City Commission"), wherein it is sought that the zoning of the property be reclassi- fied from R-5 (High Density Multiple District) to R-3 (Low Density Multiple District), as presently defined in the Comprehensive Zoning Ordinance of the City of Miami (Ordinance 68-71) ("the Zoning Ordinance"). In connection therewith, to assure the City Commission of representations made by the undersigned through its duly authorized agents and counsel at various public hearings, the undersigned covenants, represents and agrees as follows: 1. Floor Area Ratio: The Floor Aroa Ratio applicable to the property, as such term is presently defined in Article II, Section 2, Paragraph 31 of the Zoning Ordinance, shall not exceed 1.75. Therefore, based on the property containing 889,930 square feet, the floor area of buildings on the property, as defined by the aforementioned pro- vision in the Zoning Ordinance, shall be limited to a maximum Of 1,557,377square feet. 2. Height: •r1a�`+ so.4x4mum 140440 4C of tual l4iu41u, no 44418an0 in Art.104* ii., th4eLion 2, 1'aa':ayriij4s 34 of l tau Zc+aaiaai Ordieamaao, ohall taut: mice4 1 262 tact of vortical distance from the average established grade to the highest point of any mechanical penthouse on such buildings' Arayr f4gcs Or 664 vo4ima+tr MorrMmM., 4-444Orf 6 OIKMlri, A •oart 014.616. tlYY4 rAww Ui$4 • provided, however, that such limitation shall not be appWedge to auy antennas located on top of such building or buildings. 3. pans tvo The total number of residential dwelling units to be constructed on the property shall not exceed 800. 4. Specific Enforceability: This Declaration of Restrictive Covenants shall be specifically enforceable by the City. S. Release, Modification and Amendment of Covenants: Those covenants may be modified, amended or released as to any portion of the property only upon the approval therefor by the City Commission after public hearing. Should this Declaration of Restrictive Covenants be so modified, amended or released, the City Manager, acting City Manager, or Assistant City Manager of the City of Miami shall forthwith execute a written instrument effectuating and acknowledging such modification, amendment or release. IN WITNESS WHEREOF, the undersigned has set its hand and seal this .._._ day of , 1976. Signed, sealed and delivered in the presence ofs STATE OF FLORIDA) ) 8s. COUNTY OF DADE SOUTHEAST FIRST NATIONAL SANK OF MIAMI, as Trustee By: The foregoing Declaration of Restrictive Covenants was acknow- ledged before me by as of SOUTHEAST FIRST NATIONAL BANK OF MIAMI, as Trustee, this ..__ day of , 1976, for the purposes therein expressed. My commission expires: u .ATE LARGE LAW p:i4G4; or 4tacc ugafi,ra4440 4elOfI6141.If414W, 6 OugMfCl,4•ail IOW 1644.461144R�OR10� i1111