File Ref. #002
002-'?tJ}, /2-, /'117
13,r-j-I}CTtJN ;2aA().
RECEIVED
97 SEP I 2 PM 3: 44
CITY CLEHrrS OFFICE
BEFORE THE CITY OF MIAMI BEACH
FLORIDA, A MUNICIPALITY OF THE
STATE OF FLORIDA
INRE:
1355 ALTON ROAD
TEQUILA'S OF SOUTH BEACH
a/k/a TEQUILA HOUSE OF
SOUTH BEACH
CITY OF MIAMI BEACH'S ANSWER AND AFFIRMATIVE DEFENSES TO VERIFIED
COMPLAINT PURSUANT TO SECTION 163.3215. FLORIDA STATUTES
The City of Miami Beach (hereinafter the "City") , by and through its undersigned counsel,
and pursuant to Section 163.3215(4), Florida Statutes, hereby files its answer and affirmative
defenses to the Verified Complaint ("Complaint") filed by Barry Fritz ("Complainant") and states
the following:
ANSWER
1. The City neither admits nor denies the allegations in the first and third sentences in
paragraph 1 of the Complaint due to insufficient knowledge. As to the second sentence in paragraph
1 of the Complaint, the City admits that a hearing was held on July 16, 1997 before the Miami Beach
City Commission which upheld the City's Design Review Board Order in DRB File No. 8643.
2. The City denies the allegations in paragraph 2 of the Complaint that the "subject
property" (1355 Alton Road) has been dedicated to residential use, but admits that the subject
property is improved with a one story building which may have been utilized as a single family
house.
3. The City admits the allegations in paragraph 3 of the Complaint.
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OFFICE OF THE CITY ATTORNEY. 1700 CONVENTION CENTER DRIVE. MIAMI BEACH, FLORIDA 33139
4. As to the allegations in paragraph 4 of the Complaint, the City acknowledges that it
adopted amendments to its Year 2000 Comprehensive Plan ("Plan") on June 2, 1994 pursuant to
Ordinance No. 94-2928 and that Modifications to the 1994 Amendments to the Plan were adopted
on October 9, 1996 pursuant to a Compliance Agreement by Ordinance No. 96-3058 in accordance
with the Florida Statutes.
5. The City denies the allegations in paragraph 5 of the Complaint.
6. The City denies the allegations in paragraph 6 of the Complaint.
7. The City denies the allegations in paragraph 7 of the Complaint on the basis that these
allegations are essentially arguments, statements of opinion, or conclusions oflaw that are not proper
allegations of fact. In addition, the challenged order of the City is consistent with the Plan's Future
Land Use Element Policy 1.2 in that a restaurant with a bar is an "eating and drinking establishment"
specifically permitted in the CD-l District under Policy 1.2. In addition, under Section 6-6A.2 of
the City's Zoning Ordinance No. 89-2665, which must be read in pari materia with the City's Plan,
"Commercial Uses" and "[u]ses that serve Alcoholic Beverages as listed in Section 121" are Main
Permitted Uses in the CD-l District. Further, in Section 3-2.46 of the Zoning Ordinance,
"Commercial Uses" are defined to include "eating and drinking establishments". Also, a bar is a
permitted accessory use to a restaurant in the CD-l District under Section 12-2 of the City's Zoning
Ordinance. Based on the foregoing, the Plan and the Zoning Ordinance are consistent in that they
both permit "eating and drinking establishments" in the CD-l District. Accordingly, in the instant
case, the proposed restaurant, with an accessory use bar, is consistent with both the City's Plan and
ISection 12 of the City's Zoning Ordinance is entitled Liquor Control Regulations.
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OFFICE OF THE CITY ATTORNEY - 1700 CONVENTION CENTER DRIVE - MIAMI BEACH, FLORIDA 33139
Zoning Ordinance. While not relevant to this case, a bar, free standing and not accessory to a
restaurant, would not be permitted in the CD-l District.
8. The City denies the allegations in paragraph 8 ofthe Complaint on the basis that these
allegations are essentially arguments, statements of opinion, or conclusions of law that which are not
proper allegations of fact. In addition, the challenged order of the City is consistent with Future
Land Use Element Policy 1.3 of the Plan in that the Plan only requires "one or more" of six (6)
identified criteria to be utilized in establishing land development regulations. In the City's Zoning
Ordinance, which contains land development regulations, more than one criteria is reflected. For
example:
(a) criteria 2 ("horizontal separation of residential uses from non-residential activity
concentrations") is reflected in Section 6-9.C.3 which provides that residential uses
shall follow the RM-l, RM-2, and RM-3 setbacks; (b) criteria 3 ("vertical separations
of residential uses from non-residential uses") is reflected in 6-21.B.2.g which
provides for vertical separation by requiring non-residential uses to be located only
in the lobby and first floor of apartment buildings; and (c) criteria 6 ("the
enumeration of special land use administrative procedures which require a public
hearing prior to special land use approval") is provided for in, among other Sections,
Section 18-2 which sets forth certain review and public hearing procedures for
special land use approvals.
Therefore, since the land development regulations in the City's Zoning Ordinance already utilize
several of the criteria as required by the Plan, the consideration or satisfaction of criteria 5 is not
relevant to any particular development order. The Plan criteria apply to the adoption of the City's
land development regulations, and once those regulations are adopted based upon the criteria, they
are not applicable to any particular development order.
9. The City denies all allegations in the Complaint which are not specifically admitted
or denied herein.
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OFFICE OF THE CITY ATTORNEY - 1700 CONVENTION CENTER DRIVE - MIAMI BEACH, FLORIDA 33139
AFFIRMATIVE DEFENSES
10. The challenged order of the City is consistent with the Plan's Future Land Use
Element Policy 1.2 in that a restaurant with a bar is an "eating and drinking establishment"
specifically permitted in the CD-l District under Policy 1.2. In addition, under Section 6-6A.2 of
the City's Zoning Ordinance No. 89-2665, which must be read in pari materia with the City's Plan,
"Commercial Uses" and "[u]ses that serve Alcoholic Beverages as listed in Section 122" are Main
Permitted Uses in the CD-l District. Further, in Section 3-2.46 of the Zoning Ordinance,
"Commercial Uses" are defined to include "eating and drinking establishments". Also, a bar is a
permitted accessory use to a restaurant in the CD-l District under Section 12-2 ofthe City's Zoning
Ordinance. Based on the foregoing, the Plan and the Zoning Ordinance are consistent in that they
both permit "eating and drinking establishments" in the CD-l District. Accordingly, in the instant
case, the proposed restaurant, with an accessory use bar, is consistent with both the City's Plan and
Zoning Ordinance. While not relevant to this case, a bar, free standing and not accessory to a
restaurant, would not be permitted in the CD-l District.
11. The challenged order of the City is consistent with Future Land Use Element Policy
1.3 of the Plan in that the Plan only requires "one or more" of six (6) identified criteria to be utilized
in establishing land development regulations. In the City's Zoning Ordinance, which contains land
development regulations, more than one criteria is reflected. For example:
(a) criteria 2 ("horizontal separation of residential uses from non-residential activity
concentrations") is reflected in Section 6-9.C.3 which provides that residential uses
shall follow the RM-l, RM-2, and RM-3 setbacks; (b) criteria 3 ("vertical separations
of residential uses from non-residential uses") is reflected in 6-21.B.2.g which
2Section 12 of the City's Zoning Ordinance is entitled Liquor Control Regulations.
4
OFFICE OF THE CITY ATTORNEY - 1700 CONVENTION CENTER DRIVE - MIAMI BEACH, FLORIDA 33139
provides for vertical separation by requiring non-residential uses to be located only
in the lobby and first floor of apartment buildings; and (c) criteria 6 ("the
enumeration of special land use administrative procedures which require a public
hearing prior to special land use approval") is provided for in, among other Sections,
Section 18-2 which sets forth certain review and public hearing procedures for
special land use approvals.
Therefore, since the land development regulations in the City's Zoning Ordinance already utilize
several of the criteria as required by the Plan, the consideration or satisfaction of criteria 5 is not
relevant to any particular development order. The Plan criteria apply to the adoption of the City's
land development regulations, and once those regulations are adopted based upon the criteria, they
are not applicable to any particular development order.
12. Policy 1.3 is relevant only to the consideration of compatibility of uses within land
use categories or zoning districts which permit both residential and non-residential uses, and not with
respect to compatibility between different land use categories. More specifically, Policy 1.3 is not
applicable to an analysis of compatibility of uses between an RS-4 District (residential, single family
only) and a CD-l District (allowing non-residential and residential uses), but would only be
applicable to uses within the CD-l District. In this case, since Complainant's property is located in
a RS-4 zoning district, rather than the CD-l District (the location of the property referenced in the
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OFFICE OF THE CITY ATTORNEY - 1700 CONVENTION CENTER DRIVE - MIAMI BEACH. FLORIDA 33139
development order), he lacks standing to challenge the consistency of the development order with
Policy 1.3 of the Plan.
Respectfully submitted,
MURRA Y H. DUBBIN
CITY ATTORNEY
CITY OF MIAMI BEACH
1700 CONVENTION CENTER DRIVE, 4th FL
MIAMI BEACH, FL 33139
(305) 673-.7470 t ,l:Jt,iJ 11-
By: /~k/t1~it? Tjid/it
MURRAY . DUBBIN, CITY ATTORNEY
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that the foregoing was filed this 12th day of September, 1997 with
the Clerk, City of Miami Beach, 3rd Floor, 1700 Convention Center Drive, Miami Beach, Florida
33139 and that a true and correct copy of the foregoing was hand-delivered and sent via facsimile
this 12th day of September, 1997 to Jeffrey Bass, Esquire, Shubin & Bass, 46 SW 1st Street, 3rd
Floor, Miami, Florida 33130-1610.
By: 1:J:u /! A :)fZl t2e.)). Ir.JL,--
DEBORA J. TURNER
FIRST ASSISTANT CITY ATTORNEY
DlT\kw(F:\A TTO\$ALL IMIRlAM\ 13 5 5 ANS. COM)
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OFFICE OF THE CITY ATTORNEY - 1700 CONVENTION CENTER DRIVE - MIAMI BEACH, FLORIDA 33139