CAO 00-01
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CITY OF MIAMI BEACH TRANSMITTAL FORM:
REQUEST FOR LEGAL OPINION
FROM:
Murray nubbin
City Attorney
Lawrence A. Levy~
City Manager
C.M.O. Number:
1-1/00
TO:
DATB:
January 25, 2000
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I am forwarding the attached memorandum to you for your handling. As indici~ed~irectly
below, please respond to this office with a copy of your opinion to the depattm~, wRen
applicable. ,.; (;? -::::;
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As soon as possible, please return the completed Legal Department TranBmitta1~orm to
this office. . ;.-,
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StnlJBCT:
BAOBOB TREE
Thank you for your prompt attention to this matter,
SR: 1 cd
Attachment
F,\CMGR\$ALL\LISA\LEGAL.FRM\LEGAL-OP.FRM
c: Mayra niaz Buttacavoli
Janet Gavarrete
Kevin Smith
Robert Parcher
William Cary
TO:
Lawrence A,Levy
City Manager
DATE:
February 2, 2000
FROM:
Murray H. Dubbin
City Attorney
As per your request, attached is the Legal Opinion you requested regarding the above-
referenced subject,
Attachment
c:
Mayra niaz Buttacavoli
Janet Gavarrete
Kevin Smith
Robert Parcher
William Cary
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CITY OF MIAMI BEACH
Office of the City Attorney
Interoffice Memorandum
TO:
LAWRENCE A. LEVY
CITY MANAGER
C,A.O, NO, 00-01
C,M,O. NO, 1-1/00
FROM:
MURRAYH.DUBB~/J IdJ/.~
CITY ATTORNEY (Wf tf[fI./<</"
Date:
January 27,2000
Subject:
REQUEST FOR LEGAL OPINION - BAOBAB TREE!
By memorandum dated January 24, 2000, you have requested a legal opinion on three
issues related to the proposed donation of a Baobab Tree located in Collins Park to
the Zoological Society ofFlorida (Friends ofMetrozoo). This memorandum responds
to that request.
1. May the City of Miami Beach donate the Baobab Tree, which the City believes
was donated to it, to the Zoological Society?
It is our opinion that the City may donate the Baobab Tree to the
Zoological Society, The tree is not real property, but rather is either personal property
or an appurtenance to real property, Black's Law Dictionary includes in its definition
of "appurtenance" the following: "Something annexed to another thing more worthy
as principal, and which passes as incident to it, as a right of way or other easement to
land; an outhouse, barn, garden, or orchard, to a house or messuage [dwelling-house
with the adjacent buildings and curtilage]." Black's Law Dictionary 94 (5th Ed, 1979),
As such, the tree is not governed by the ordinances and statutes that govern a
municipality's disposition of real property. As personal property, or an appurtenance
to real property, the City is able to dispose of the tree as it handles other surplus
personal property, The subject is not governed by provisions of the Miami Beach
Code of Ordinances, Chapter 274, Tangible Personal Property Owned by Local
Governments, Section 274,05, Florida Statutes (1999), Surplus Property, provides:
This office has confirmed the correct spelling as: BaobAb Tree,
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Memorandum to Lawrence A. Levy
February 1,2000
Page 2
A governmental unit shall have discretion to classify as
surplus any of its property, which property is not otherwise
lawfully disposed of, that is obsolete or the continued use of
which is uneconomical or inefficient, or which serves no
useful function. Within the reasonable exercise of its
discretion and having consideration for the best interests of the
county or district, the value and condition of property
classified as surplus, and the probability of such property's
being desired by the prospective bidder or donee to whom
offered, the governmental unit may offer surplus property to
other governmental units in the county or district for sale or
donation or may offer the property to private nonprofit
agencies as defined in s, 273,01(3) by sale or donation. , , .
The cost of transferring the property shall be paid by the
governmental unit or the private nonprofit agency purchasing
or receiving the donation of the surplus property,
Section 273.01(3), Florida Statutes defines "Private nonprofit agency" as
a nonprofit charitable organization, no part of the net earnings
of which inures or may lawfully inure to the benefit of any
private shareholder or individual, which has been held to be
tax exempt under the provisions of s. 501 of the Internal
Revenue Code of 1954, and which has as its principal mission:
(a) Public health and welfare; (b) Education; (c)
Environmental restoration and conservation; (d) Civil and
human rights; or (e) the relief of human suffering and poverty,
It is assumed that the Zoological Society of Florida, Inc, falls within the above
definition as a private nonprofit agency, The City's Procurement Division reports that
the City has previously donated surplus property to various non-City entities, such as
not- for-profit corporations, or other governmental entities, One example is donations
through the Sister City Program,
2. Would the donation to the Zoological Society require approval of the Historic
Preservation Board, since Collins Park is in an historic district?
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Memorandum to Lawrence A. Levy
February 1,2000
Page 3
It is our opinion that the City's Historic Preservation Board does have
jurisdiction over the removal of the Baobab Tree, but not necessarily its disposition.
The Board is empowered with authority over the alteration of buildings and other
features, including landscaping, in historic districts, but after the Board authorizes the
alteration, i.e" the removal of the tree, its disposition is within the discretion of the
City Commission, Miami Beach City Code Section 118-503, governing the scope
of the authority of the Board, provides: "no building permits shall be issued for new
construction, demolition, alteration, rehabilitation, signage or any other physical
modification of a historic site, historic building, historic structure, historic
improvement, historic landscape feature or any building or structure located within
a historic district without the prior issuance of a certificate of appropriateness or
certificate to dig by the historic preservation board in accordance with the procedures
specified in this section," "Alteration" is specifically defined as "any change affecting
the external appearance of a structure or other features of a site including but not
limited to landscaping, , , ." While no City "building permit" would actually be
required for removal of the tree, the intent of the ordinance is to require Board
approval prior to the alteration, however it is officially authorized.
3, Would the donation require the Miami-Dade County Department ofEnvironmental
Resources Management's [DERM] approval?
It is our opinion that a permit to remove and relocate the tree will be
needed from DERM, DERM's authority over tree removal and relocation is set forth
in Miami-Dade County Code Chapter 24, Article III, Tree Preservation and
Protection, The facts presented are not exempted under County Code section 24-
60(4), thus a permit is required, Further, according to DERM staff, the tree is likely
to be considered a specimen tree, governed by the standards of Code section 24-
60,2(11), Specific standards are set forth for relocation under Code section 24-60,6,
It is recommended that contact with DERM be established early to ensure the
appropriate removal and relocation requirements are satisfied, and permits are
properly applied for and secured (including satisfaction of the bond requirement, if
applicable). It is further recommended that appropriate tree experts be used who are
familiar with specimen tree removal and relocation to promote the likelihood of
compliance with the applicable requirements, and the tree's survival upon relocation,
MHD/GMH/CMR/gmh
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