CAO 01-14 Alaska Parcel
OFFICE OF THE CITY ATTORNEY
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Telephone:
Telecopy:
(305) 673-7471
(305) 673-700:
FROM:
rvIELVIN SCHLESSER, CHAIRMAN C.A.O. NO. 01-14
and rvIEMBERS OF THE PLANNING BOARD
MURRAY H. DUBBIN ~"V
CITY ATTORNEY ~~.
GARY M. HELD c:J:IJL /i
FIRST ASST. CITY ATTORNEY F-/ (
TO:
Date:
September 4, 2001
Subject:
REQUEST FOR LEGAL OPINION - ALASKA PARCEL
At your Special Meeting of August 22, 2001, during which you considered an
application on the subject parcel for temporary parking, you requested a written legal
opinion on certain issues relevant to your review of that application and applications
to amend the zoning map and future land use map for the subject property. This
memorandum responds to that request. I
You requested a legal opinion on three issues:
1. What is the legal effect of the 1985 agreement between Cook Inlet Region, Inc.
and the City of Miami Beach, which provides for up to a 75-foot easement on the
subject parcel, among other things?
2. What is the legal effect of the settlement agreement obligating the City and
Porto fino to provide parking for the marina on the Alaska parcel, without referring to
I This opinion is not intended to be restrictive of legal arguments that may become
necessary or appropriate in any future litigation arising on these issues.
1700 Convention Center Drive __ Fourth Floor - Miami Beach, Florida 33139
Memorandum to Planning Board
September 4, 200 I
Page 2
the conditional use or review procedures upon which the granting of that license is
conditioned?
3. What are the powers of the Planning Board to condition applications such as for
temporary parking, or amendments to the zoning map and land use plan?
An additional issue we will address in this opinion is:
4. What is the legal validity of the property owner's claim that the existing N1R
zoning on the property constitutes reverse spot zoning?
1. What is the legal effect of the 1985 agreement between Cook Inlet Region, Inc.
and the City of Miami Beach, which provides for up to a 75-foot easement on the
subject parcel, among other things?
The 1985 Agreement between Cook Inlet Region, Inc. ("CIRI") and the
City, attached to this opinion as Exhibit "B," ("Agreement") is a covenant running
with the land in favor of the City of Miami Beach affecting the Alaska parcel. It is
expressly binding on "all successors in interest and assigns of CIRI." The Special
Warranty Deed conveying title from CIRI to its current owner East Coastline
Development, Ltd. (copy attached as Exhibit "C"), was made subject to this
Agreement. Attached as Exhibit" 1 " is an opinion of outside counsel on the current
force and effect of the Agreement. The opinion of both outside counsel and of this
office is that the Agreement is currently binding and in effect.
The Agreement describes the consideration for the owner's
commitments, then specifies the commitments. Specifically, in order to bind the City
"to negotiate a Development Agreement in good faith" (the consideration) CIR!
committed to enter into a Cooperative Development Plan with the City "upon
formulation of plans for development of the above-described property." CIR! further
committed as follows:
1. In the regular course of development of the property, crRl
will provide a coastal walkway easement, of a width of up to
75 feet as determined by the site plan, linking the City Park
and the City Marina. Within that easement CIRl will build, at
its cost, a walkway or promenade that will include appropriate
Memorandum to Planning Board
September 4. 200 I
Page 3
landscaping, street furniture and pedestrian-oriented amenities
as part of its overall site development.
2. CIRI will also include in its development some facility
appropriate for use by the community such as a pavilion, a
gallery or facility that would be compatible with the
commercial activities of the CIRl development, provided that
the provision of such a facility shall not affect the size, etc of
the project that CIRI could otherwise develop if the facility
were not incorporated (Le., the facility shall not be included in
the density determinations, lot coverage limits and other
applicable land use requirements).
3. CIRI further agrees to provide the City with an easement
where W ashington Avenue serves as joint access to the
property of both CIRI and the City.
4. No development of said property shall occur without the
above three interests being included in such development.
The Agreement requires the current owner of the property at the time of
permanent development of the property, to (1) enter into a Cooperative Development
Plan with the City; (2) provide an easement of up to 75 feet for a coastal walkway
linking South Pointe Park with the Miami Beach Marina; and (3) construct within that
easement a walkway or promenade that will include appropriate landscaping, street
furniture and pedestrian-oriented amenities.2 Further, the property owner is obligated
to provide in its development a facility appropriate for use by the community, such
2 The word "permanent" is used because that appears to be what was intended by
the Agreement. Evidence of such is found in the phrase in paragraph 1: "regular course of
development of the property," and in the nature of improvements provided for in paragraphs
1 and 2, including a "pavilion, gallery or facility compatible with commercial activities of
the erRl development." The qualifying language in paragraph 2 requires an analysis of the
property owner's permanent development under the applicable land use regulations. While
paragraph 4 provides that no "development" shall occur without the interests provided for
in paragraphs 1-3 being included, it is not believed that "temporary" developments were
intended to be included in such requirement.
Memorandum to Planning Board
September 4. 200 I
Page 4
as a pavilion, gallery, or other facility consistent with commercial activities of the
development. if such facility "V ere able to be excluded from the maximum permitted
floor area. density, lot coverage or other applicable land use regulations. The property
owner is also obligated to provide an easement where Washington A venue serves as
the joint access to the property of the property owner and the City. And the
Agreement requires that "no development of [the] property shall occur without the
above three interests being included in such development."
While the Agreement states it is being entered into in order to bind the
city in good faith to negotiate a development agreement on the property, the
Agreement does not by its terms make the entering into of such a development
agreement to be a condition precedent to the obligations of the property owner
provided for in the Agreement. The Agreement is a promise to engage in certain acts
to induce the City to engage in good faith negotiations regardless of whether the City
ever entered or enters into the contemplated development agreement. This
interpretation is supported by the declaration in paragraph four that "no development
shall occur" without such improvements being included in the development;
conceivably there are developments that could occur without a development
agreement.
2. What is the legal effect of the settlement agreement obligating the City and
Portofino to provide parking for the marina on the Alaska parcel, without
referring to the conditional use or review procedures upon which the granting
of that license is conditioned?
The absence of reference to conditional use review in the settlement
agreement obligating the City and Portofino to provide parking for the marina on the
Alaska parcel does not negate the legal effect of the agreement. As stated in Fla. Jur.
2d, Constitutional Law, section 366, Effect of existing laws:
The laws in force at the time the parties enter into a
contract, especially those laws in pursuance of which the
contract is made, become a part of the contract as if they
had been expressly referred to or incorporated in its
terms.
In Normandv Beach Properties Corp. v. Adams, 145 So. 870 (Fla.
Memorandum to Planning Board
September 4, 200 I
PalZe 5
....
1933). an option contract to sell 28 acres of submerged lands in Biscayne Bay
withstood a lelZal challensze that the contract failed to include reservations in favor of
- -
the United States in aid of commerce and navigation. The court held that a seller may
covenant against encumbrances, and the contract could be rescinded if the restrictions
are not lifted, but that rule "does not apply to reasonable restrictions imposed by
public authority in the use of property, . .." 145 So. at 871. See also. Frizzell v.
Bartlev, 372 So.2d 13 71 (Fla. 1979)( as to statute authorizing trial court to modify
alimony agreement, where agreement was not incorporated into a divorce decree);
McCaskill v. Union Naval Stores Co., 52 So. 961 (Fla. 1910)( as to ta"( law providing
when ta"(es were due and payable, to avoid a forfeiture for failure to pay taxes before
they were due).
According to the above principles, the agreement would be subject to
the requirements in the City's Land Development Regulations for Planning Board
approval of the use after public hearing according to the conditional use procedures,
even without reference to such provisions in the agreement.
3. What are the powers of the Planning Board to condition applications such as
for temporary parking, or amendments to the zoning map and land use plan?
The degree to which governmental entities can condition development
approvals has received considerable judicial attention. One dispute has centered
around whether a set of conditions has been derived through illegal "contract zoning"
or has been the result of more acceptable "conditional zoning." Contract zoning has
been criticized as a . contracting away of the local government's police power.
Hartnett v. Austin, 93 So.2d 86, 89 (Fla. 1956):
A municipality has no authority to enter into a private contract
with a property Owner for the amendment of a zoning
ordinance subject to various covenants and restrictions in a
collateral deed or agreement to be executed between the city
and the property owner. Such collateral agreements have been
held void in all of the cases to which we have been referred.
Any contrary rule would condone a violation of the long
established principle that a municipality cannot contract away
the exercise of its police powers. When a zoning ordinance is
amended by changing the classification of a particular
Memorandum to Planning Board
September 4, 200 I
Page 6
property, such amendment must be justitied by a change in the
use value of the property involved.
(citations omitted); Chung v. Sarasota County, 686 So.2d 1358 (Fla. 2d DCA 1996).
("'Contract zoning' refers to an agreement between a property owner and a local
government where the property owner agrees to certain conditions in return for the
government's rezoning or enforceable promise to rezone."). However, an agreement
settling a dispute between a local government and a developer, and the orders
approving and enforcing it, do not constitute illegal contract zoning, where the
agreement and the order do not limit, prohibit, or eliminate the obligation of the
parties to comply with applicable zoning ordinances and laws, nor eliminate the
necessity for public hearings as might be required. Contract or Conditional Zoning,
Fla. Jur. 2d(ApriI2001), explaining Molina v. Tradewinds Dev. COl1'., 526 So.2d695
(Fla. 4th DCA 1988).
What is clear from Hartnett and Chung is that the local government
cannot enter into an agreement obli crating itself to rezone land in the future. The local
e ...
government must retain the authority to decline to grant the requested rezoning, after
a public hearing with due notice to the public and affected parties. However, local
governments have accepted voluntary covenants restricting a property owner's rights
to use land, or mitigating the impacts of development, as incentive for granting
rezoning or plan amendments.
More specifically relevant to the Board's inquiry is the imposition of
conditions on a development approval without the agreement of the property owner.
Development approvals can take many different forms, e. g., an approval for a specific
use of property (such as the temporary parking approval on Alaska), or a variance,
rezoning or plan amendment. Development approvals granting permits or other
specific authorizations for the use of property are generally recognized as subject to
reasonable conditions imposed by the local government. Such imposition is the basis
for the Nolan-Dollan line of cases (discussed infra), and is generally recognized
throughout the United States.
The Miami Beach City Code specifically authorizes the Planning Board
to impose "appropriate conditions and safeguards" in "granting a request." Section
118-51, Planning Board Powers and Duties, subsection (6), provides that:
Memorandum to Planning Board
Septemb~r 4, 2001
Page 7
In granting a request. the board may prescribe
appropriate conditions and safeguards which are
consistent and supportive of the city's comprehensive
plan, neighborhood plan, or capital improvement plan.
Violation of such conditions and safeguards shall be
deemed a violation of these land development
regulations.
The Planning Board' s consideration of the temporary parking lot on the
Alaska parcel was as "granting authority." It was the final administrative board
considering the issue and could grant, deny or condition the request as permitted by
applicable law. The role of the Planning Board in consideration of applications to
....
amend the land use map or future land use plan is in the nature of an advisory body
making recommendations to the Citv Commission. A recommendation can be
.... ~
conditioned, but does not have the force or effect of an imposition of a condition on
a development approval. It would be up to the City Commission to decide whether
to accept or impose conditions on the application to amend the zoning map or land
use plan.
As to whether the Commission could impose conditions on an
application to amend the zoning map or land use plan, there appears to be little
guidance in the commentaries, case law or statutory authority. Various commentators
accept the concept of "conditional zoning," with reservations. Lewis, in an article
entitled "Spot Zoning, Contract Zoning, and Conditional Zoning," in Florida
Environmental and Land Use Law, Vol. II (1989), suggests that a rezoning must be
"justifiable or fairly debatable before attaching conditions," thereby distinguishing
Hartnett. Lewis was also concerned about overreaching (a problem now crystallized
by the Nolan-Dollan tests), and violations of district uniformity (which should not be
a problem on the Alaska parcel, since it is the only parcel presently zoned rv1R, and
though it could be one of a number of parcels similarly zoned if upzoned, its
uniqueness probably justifies specialized treatment, regardless of its ultimate zoning
and plan designations). Appropriate means by which to condition amendments to the
zoning map or land use plan would be to accept a voluntary proffer from the applicant
or property owner, or to enter into a development agreement as permitted by Florida
law. Sections 163.3220-3243, Florida Statutes (2000).
The United States Supreme Court has established certain tests to ensure
M~morandum to Planning Board
S~pt~mb~r .+. 2001
Page 8
that the imposition of conditions by local governments on development approvals do
not violate the Fifth and Fourteenth Amendments. In Dolan v. Citv ofTiQard, 11.+ S.
Ct. 2309 (1994), the Court explained and expanded upon its earlier decision in Nollan
v. California Coastal Comm'n, 107 S. Ct. 31.+1 (1987) to arrive at the following two
part test: ( 1) "[WJe must first determine whether the' essential nexus' exists between
the 'legitimate state interest' and the permit condition exacted by the city"; and (2) "If
we find that a nexus exists, we must then decide the required degree of connection
betvveen the exactions and the projected impact of the proposed development." 114
S. Ct. at2317 (citations omitted). The Court described the connection as follows: "We
think a term such as 'rough proportionality' best encapsulates what we hold to be the
requirement of the Fifth Amendment. No precise mathematical calculation is
required, but the city must make some sort of individualized determination that the
required dedication is related both in nature and extent to the impact of the proposed
development." 114 S. Ct. at 2319-20. Both of these cases involved efforts by the
local governmental authority to obtain an easement or dedication in association with
requests for development approvals by the property owners. In each, the United
States Supreme court struck the condition as either without a nexus to the
governmental interest asserted to justify the condition, or not accompanied by a
particularized assessment of impacts in relation to the condition.
To summarize the Court's view, it concluded Dolan with the following
few sentences:
Cities have long engaged in the commendable task ofland use
planning, made necessary by increasing urbanization,
particularly in metropolitan areas such as Portland. The city's
goals of reducing flooding hazards and traffic congestion, and
providing public greenways, are laudable, but there are outer
limits to how this may be done. 'A strong public desire to
improve the public condition [will not] warrant achieving the
desire by a shorter cut than the constitutional way of paying
for the change.
114 S. Ct. at 2322 (brackets in original, citation omitted).
Memorandum to Planning Board
September 4, 200 I
Page 9
4. What is the legal validity of the property owner's claim that the existing l\iIR
zoning on the property constitutes reverse spot zoning?
Reverse spot zoning occurs when a zoning ordinance prevents
a property owner from utilizing his or her property in a certain
way, when virtually all of the adjoining neighbors are not
subject to such a restriction, creating, in effect, a veritable
zoning island or zoning peninsula in a surrounding sea of
contrary zoning classification. Reverse spot zoning is invalid,
as it is confiscatory.
City of Miami Beach v. Robbins, 702 So.2d 1329, 1330 (Fla. 3d DCA 1997).
Robbins successfully challenged Miami Beach's zoning designation of
RM-1 on three city blocks, where surrounding properties were designated R1v1-2. The
Court, however, said the City was not estopped from revisiting that zoning if the
surrounding properties were rezoned RM-1.
Reverse spot zoning cases involve challenges to zoning that had been in
effect for a long period of time, while the surrounding area had changed to more
intense uses and zoning classifications that preclude the zoned-use of the parcel in
dispute, or compel the conclusion that the zoning of the parcel in dispute doesn't
make sense. Debes v. City ofKev West, 690 So.2d 700 (Fla. 3d DCA 1997)(medium
density residential parcel surrounded in all directions by general commercial)3; City
of Miami v. Woodlawn Park Cemetery Co., 553 So.2d 1227 (Fla. 3d DCA
1989)(application to rezone 1.3 acres of68 acre cemetery for funeral home, where
property fronting on 8th Street for miles in either direction is commercial); Dade
County v. Beachamp, 348 So.2d 53 (Fla. 3d DCA 1977)(property on Key Biscayne
abutting Crandon Park on one side, and surrounded on other sides by zoning
permitting 50, 87 and 33 units per acre, was improperly restricted to 23 units per
acre); City of Miami v. Schutte, 262 So.2d 14 (Fla. 3d DCA 1972)(maintaining
commercial zoning on property surrounded by residential was reverse spot zoning).
3 In Debes, the Third District Court of Appeal quoted Rathkopf, The Law of
Zoning, which stated: "zoning classifications and perinit decisions based on a desire to avoid
increased traffic congestion is not sufficient justification for the retention of an unsuitable
or unreasonable zoning classification."
Memorandum to Planning Board
September 4. 2001
Page 10
In Schutte, the Third District Court stated:
[W]hen a zoning regulation is 'fairly debatable' then the courts
are not empowered to interfere with the legislative action of a
governing body. . " However, in attempting to determine
what constitutes 'fairly debatable', the Supreme Court of
Florida has clearly indicated that the debate must be upon
grounds that 'markes [sic] sense. It can't be said to 'make
sense', in the instant case for the Citv fathers on the one hand
, .
to permit the erection of apartment houses on property almost
entirely surrounding the property involved in the instant case
and to deny it on the appellee's property. This constitutes spot
zoning in reverse.
262 So.2d at 16-17 (citations omitted); See also, Manilow v. Citv of Miami Beach,
213 So.2d589 (Fla. 3dDCA 1 968)(northeast corner of Arthur Godfrey Road and Pine
Tree Drive; court held maintaining single family zoning was unreasonable, in light
of A&P grocery on southwest corner, Jefferson National Bank on northwest corner,
four storv motel on southeast corner and increased traffic on Arthur Godfrey Road);
" . ,
Kugel v. Citv of Miami Beach, 206 So.2d 282 (Fla. 3d DCA 1968)(northeast corner
of 17th Street and Meridian Avenue). The Kugel court summarized the justification
for striking down existing zoning as reverse spot zoning by stating: "Where changed
conditions create a situation where the zoning of appe~lants' property is so
unreasonable as to constitute a taking of his property, then the courts are justified in
striking down the arbitrary zoning classification." 206 So.2d 284. It is generally
recognized that to constitute a taking, the regulations must prevent all reasonable use
of the property. Graham v. Estuarv Properties. Inc., 399 So.2d 1374, 1380-81 (Fla.
1981).
The circumstances of reverse spot zoning in the above cases stand in
contrast to the Alaska parcel's relationship to the other privately owned parcels in the
area. The zoning on the Alaska parcel was originally a government use category, and
since it was placed in private ownership has remained a low density commercial
designation. The other privately owned parcels in the area, pointedly do not
"surround" the Alaska parcel as in the above cases, but are separated to the east
(Portofino Tower, South Pointe Tower) and west (SSDI-South) by city-owned park
land (South Pointe Park and the Federal Triangle), and only abut Alaska on the north
Memorandum to Planning Board
Septembt:r 4. 2001
Pa!2:e 11
...
(Hinson and Goodman). These other parcels are hight:r density commercial or
residential zoned parcels. but importantly have always been so since placed in private
ownership. Thus. this is not a case of parcels that have substantially increased in
density over time surrounding a parcel that can no longer be used for its zoned
purpose because of the changes in the area or the zoning on the surrounding parcels.
The unique characteristics of the Alaska parcel, lying on the waterfront of
Government Cut, abutting two park parcels, justified its lower density designation
when it was placed in private ownership, and justifies such designation today.
In order to evaluate the validity of the NIR zoning and plan designations
in response to a claim of reverse spot zoning, one must also recall that the Alaska
parcel is a part of the Portofino DR! approved and adopted by the City Commission
in 1998. That DR! included numerous parcels owned by the present owner of Alaska,
many of which have already been developed, or are under development. The uses and
intensities of use that the property owner seeks to move onto the Alaska parcel
through a redistribution of development rights permitted by the Portofino DR! were
approved for all of the properties within the DR! subject to the applicable zoning
designations. The property owner purchased the Alaska parcel under its NIR zoning,
which zoning was confirmed in 1998 at the time of the DR! approval. The
Application for Development Approval (ADA) for the DR! depicts the Alaska parcel
as NIR, and didn't seek to amend it at that time. Arguably, the City Commission
approved the large intensities of development permitted through the Porto fino DR!
knowing that this one small parcel on the waterfront where the Atlantic Ocean and
Biscayne Bay meet would be available for marine recreational use under fairly
restrictive low density zoning. The City Commission's grant of development rights
collectively through the DR!, which have been enjoyed by the Alaska parcel property
owner through either very lucrative sales or development of the remaining parcels in
the DR!, belies any confiscatory allegation of the NIR designation on the Alaska
parcel.
Any claim that Alaska's zoning constitutes reverse spot zoning that
denies the property owner of rights enjoyed by surrounding parcels ignores that the
immediately surrounding parcels are the Government Cut waterway (south), South
Pointe Park (east), Federal Triangle (west) and the Goodman and Hinson tracts
(north). Goodman and Hinson, originally owned by the same principal owning the
Alaska parcel, were part of the Portofino DR! and enjoy the potential of substantially
increased development rights through that DR!. No sea of development rights by
Memorandum to Planning Board
September 4. 200 I
Page 12
other property owners surrounds Alaska. A reverse spot zoning claim arguably
cannot stand given the magnitude of development rights this property owner has
obtained and successfully realized through the DR!.
In Graham v. . Estuarv Properties, supra, the Florida Supreme Court
evaluated whether a property owner could be required to forego a substantial portion
of a proposed DRI/large scale development because the destruction ofmangroves for
the development would have negative environmental consequences. While the court
focused on the public harm that the mangrove destruction would cause, it concluded
stress[ing] the magnitude of Estuary's proposed development
and the sensitive nature of the surrounding lands and water to
be affected by it. In this situation it is not unreasonable to
place some restrictions on the owner's use of the property. . .
. Estuary. . . had only its subjective expectation that the land
could be developed in the manner it now proposes. Estuary
diligently and at considerable expense prepared development
plans in an attempt to assure that its development would not
adversely affect the environment. It recognized that it should
not materially alter the property in a way that would have
serious adverse impact on the surrounding area. The fact
finder concluded that Estuary's plans do not accomplish this
goal, and that the development would in fact be detrimental to
the surrounding area.
399 So.2d at 1383.
While the environmental issues in the Alaska parcel are not to the same
magnitude as those in Estuary Properties, there are many issues that suggest the
maintenance of the existing zoning on the Alaska parcel makes sense, and is not
confiscatory or a taking. To determine that a portion of a DRl/large scale
development should remain low density while its balance is fully developed, is a
perfectly reasonable conclusion upon which reasonable persons can legitimately differ
-- thus it is fairly debatable.
Memorandum to Planning Board
September 4, 2001
Page 13
Under the tests and cases articulated. and facts presented. the
maintenance of MR. zoning on the Alaska parcel should not be found to be reverse
spot zoning.
MHD/GMH/gmh
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