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Gilbert Zriny
329 Jefferson Ave.
Miami Beach, FL 33139
Tel. (305) 672-8817
VIA CERTIFIED MAIL, NO. Z 366 117 413
Dec. 7, 1998
Agency Clerk
Department of Community Affairs
2555 Shumard Oak Boulevard
Tallahassee, FL 32399-2100
RE: DOCKET NO. 98DI-NOl-1316-(A)-(1)
PETITION BY AN AFFECTED PERSON FOR AN
ADMINISTRATIVE HEARING TO CHALLENGE
THE PROPOSED AGENCY DETERMINATION THAT
THE AMENDMENTS TO THE CITY OF MIAMI BEACH'S
COMPREHENSIVE PLAN ARE IN COMPLIANCE WITH
STATUTORY REQUIREMENTS. (AS PER AMENDED
NOTICE OF INTENT, PUBLISHED BY DCA NOV. 22,
1998, MIAMI HERALD.)
SYNOPSIS OF ISSUES AND ACTION REQUESTED
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The Comprehensive Plan amendment being considered is precluded
by a City Charter Amendment adopted June 3, 1997 that prohibits
the City from increasing by "zoning...or any other means" the
pre-existing floor area ratio (FAR) permitted for this property
without voter approval. Voter approval has not been obtained for
the increase in FAR that would be established by the amendment
being considered.
The Comprehensive Plan Land Use designation for the parcel which
is the subject of this amendment ("Park Parcel") is "Recreation
and Open Space" ("ROS"), for which the maximum FAR is 0.5. The
parcel is adjacent to Biscayne Bay, and thus subject to the FAR
limitations established by the June 3, 1997 Charter Amendment.
The City's amending ordinance, April 15, 1998, would increase the
permitted FAR to 2.5 in its redesignation of the land use to
C-PS4 ("Commercial Intensive Phased Bayside").
The Charter of the City of Miami Beach precludes actions
prohibited by the Charter. (Section 1.03(a).) If the above
material facts are deemed accurate, then DCA can determine that
the amendment proposed is not permissible under the applicable
provisions of Florida Statutes. In particular, a land use
redesignation as proposed, increasing FAR, would not be "in
compliance", (F.S. 163.3184(1)(b)), and would be "inconsistent"
with the requirements of F.S. 163.3187(2) -- which restricts
comprehensive plan amendments to those which "preserve the
internal consistency of the plan". Policy 1.3 of the
Comprehensive Plan requires zoning to reflect limitations on land
use intensities. And F.S. 163.3194(1)(b) requires a city's
zoning ordinance to be brought into conformity with the City's
1/
2
Comprehensive Plan Elements. Approval of an amendment precluded
by the Charter would result in impermissible inconsistencies in
land use categories and implementation policies of the plan.
ACTION REQUESTED: ADVISE THE CITY EITHER TO RESUBMIT THE
AMENDMENT WITH EVIDENCE OF VOTER APPROVAL (AS PER THE CHARTER
AMENDMENT); OR TO RESUBMIT AS AN AMENDED LAND USE DESIGNATION
THAT HAS AN F.A.R. NO GREATER THAN 0.5 (AS, FOR EXAMPLE, CD-I)
The statute provides avenues for bringing a comprehensive plan
amendment into compliance with statutory requirements. (F.S.
163.3189(2)(b).) In this case, if there is no pressing reason
for the City of Miami Beach to seek voter approval of a land use
designation that would increase the subject parcells FAR, the
City could instead consider a change in the land use designation
to an alternative land use having an FAR no greater than that
permitted without voter approval. Such an alternative exists --
as, for example, the current CD-I, "Low Intensity Commercial"
category, that permits an F.A.R. of no more than 0.5, which is
the same F.A.R. as the R.O.S. category - (Policy 1.2 of Objective
1, Future Land Use Element, Comprehensive Plan, Part II, pages 4
and 1).
* * * * * * *
Dear Department of Community Affairs:
This petition and the following information is provided as
required by your Notice, and Rule 28-106.201, F.A.C.
I am an "affected person" under F.S. 163.3184(1)(a) as a property
owner and resident of Miami Beach.
This is a request that the Department of Community Affairs
determine that the Amendment to the Comprehensive Plan for the
City of Miami Beach, adopted by Ordinance No. 98-3118 on April
15, 1998 be found not in compliance with applicable Florida
statutes, and that I be provided an opportunity for an
administrative hearing in opposition to an agency determination
that the amendment complies with Florida law.
In order to provide a reasonable opportunity for me to
participate in an administrative hearing, I request that the
hearing be held in the City of Miami Beach.
In accordance with Rule 28-106.2,01, Florida Administrative Code,
the following information is provided:
As per Sec. 28-106.201(2)(a) -- the agency affected is the
Department of Community Affairs.
(2)(b) Petitioner: Gilbert Zriny, 329 Jefferson Ave., Miami
Beach, FL 33139, Tel. (305) 672-8817. My "substantial interests"
3
will be affected in two major respects: I am an owner of, and
reside in, my rental property at 329 Jefferson Avenue, four
blocks from the South Beach Park site which is the Recreation and
Open Space parcel that is the subject of the proposed
redesignation to high density commercial use. The South Beach
Park parcel is the only park/Recreation and Open Space Parcel in
the South Pointe neighborhood fronting on and with access to
Biscayne Bay. Its location is the only known parcel with
feasible access for a public boat landing in this protected area
of Biscayne Bay. The Recreation and Open Space designation has a
purpose "To provide development opportunities for existing and
new recreation and open space facilities, including waterways."
The low F.A.R. of 0.5 permitted would tend to ensure that access
to, and a view of Biscayne Bay from this southerly point on the
Bay would continue to provide a public benefit, that would not be
available with a commercial redesignation providing for a denisty
five times greater (at 2.5 FAR permitted for the intensive
Commercial Development designation, C-PS4). Secondly, as a
member of the electorate, I have a profound interest in the City
of Miami Beach observing the Charter Amendment adopted through a
public referendum election, that prohibits, without voter
approval, an increase by any means of the permitted floor area
ratio for this parcel of land adjacent to Biscayne Bay.
(c) I received notice of the pending agency decision by the
published Amended Notice of Intent that appeared Sunday, Nov. 22,
1998 on page 29 of the "Neighborsll Section of the Miami Herald.
(d) I do not believe there are any disputed issues of material
fact. Listed below are the relevant facts material to the
proposed agency determination. Please advise me if the agency or
the City of Miami Beach considers that these facts are in
dispute.
1. The parcel in question (approximately .74 acres in
size, and shown on the City of Miami Beach 1990 Inventory of
City-Owned Property as "South Beach Park"), is adjacent to
Biscayne Bay.
2. As of the date of voter approval of the June 3, 1997
Charter Amendment, as well as the effective date of Jan. 31, 1997
as referred to in the Ballot Question, the subject parcel was
designated "Recreation and Open Space" (ROS), per Policy 1.2 of
Objective 1 "Land Development Regulations", of the "FUTURE LAND
USE ELEMENTII of the City of Miami Beach Comprehensive Plan, PART
II: GOALS, OBJECTIVES and POLICIES, and shown as such on the
City's Future Land Use Map. That designation provided that "(I)n
no case shall the intensity exceed a floor area ratio of 0.5."
3. The Charter Amendment, adopted June 3, 1997, and in
effect from Jan. 31, 1997, provides in relevant part that "The
4
floor area ratio of any platted property...within the City of
Miami Beach adjacent to...Biscayne Bay shall not be increased by
zoning, transfer, or any other means from its current zoned floor
area ratio as it exists on the date of adoption of this Charter
Amendment...unless any such increase in zoned floor area ratio
for any such property shall first be approved by a vote of the
electors of the City of Miami Beach. ...11.
4. Ordinance No. 98-3118, adopted by the City Commission
April 15, 1998 amended the land use designation for the parcel
from ROS to C-PS4. C-PS4 provides for a Floor Area Ratio
greater than 0.5, namely, a FAR of 2.5.
5. Ordinance 98-3118 was not presented for, nor received
voter approval.
6. Section 1.03(a) of the City of Miami Beach Charter
provides that the City "...may exercise any power for municipal
purposes except as expressly prohibited by law or this Charter."
(Emphasis supplied.)
7. Ordinance No. 98-3118, April 15, 1998, changed the land
use designation from ROS, with an FAR of 0.5, to C-PS4, with an
FAR of 2.5, for the subject parcel of land adjacent to Biscayne
Bay, covered by the literal language of the Charter Amendment
approved by the voters June 3, 1997 prohibiting any such increase
in zoned floor area ratio without voter approval, and no voter
approval has been obtained.
(e) The ultimate facts alleged include the material facts listed
in paragraph (d) immediately preceding, which are incorporated
herein. The rules and statutes which entitle the petitioner to
relief include:
1. Florida Constitution, Article 8 Section 2
"Municipalities". As referenced in cases cited generally in 24
Fla D 2d, the municipal charter governs the exercise of municipal
powers, including the enactment of ordinances.
2. Municipal Home Rule Powers Act, Chapter 166, Florida
Statutes. See esp. Sec. 166.021 - Powers. Municipalities
exercise governmental powers, pursuant to law (i.e., within the
provisions of the municipal charter).
3. City of Miami Beach Charter, Sec. 1.03. "Powers of
city." Subsection (a) provides that the City shall have and may
exercise governmental powers..."except as expressly prohibited by
law or this Charter." Consequently, the City Commission may not
enact an ordinance that is prohibited by the Charter -- (In this
case, the June 3, 1997 Charter Amendment that requires voter
approval for the action taken in Ordinance No. 98-3118, April 15,
1998) .
5
4. City of Miami Beach Charter Amendment, June 3, 1997.
Prohibits increase in floor area ratio of any platted property
adjacent to Biscayne Bay, "by zoning, transfer, or any other
means from its current zoned floor area ratio as it exists on the
date of adoption of this Charter Amendment...unless any such
increase...shall first be approved by a vote of the electors of
the City of Miami Beach."
5. The proposed zoning amendment (Ord. No. 98-3118) is not
"in compliance" with applicable sections of the statutes listed
in F.S. 163.3184 (l)(b), being "inconsistent" with F.S.
163.3187(2) and F.S. 163.3194(1)(b), (as explained below).
6. F.S 163.3187 (2) provides that "Comprehensive plans may
only be amended in such a way as to preserve the internal
consistency of the plan pursuant to s. 163.3177(2). ...n
The June 3, 1997 Charter Amendment precludes, without voter
approval, the increase "by zoning...or any other means" of the
current floor area ratio of the subject parcel. The April 15,
1998 City Ordinance amending the Comprehensive Plan constitutes
an action "by zoning...or otherwise", that increases the
applicable FAR of 0.5 by redesignation of the parcel to a C-PS4
designation that provides for an FAR of 2.5. F.S.
163.3194(1)(b), first sentence, requires that a city's zoning
ordinance be brought into conformity with the City's
Comprehensive Plan elements. Policy 1.3 of the Comprehensive
Plan requires zoning to reflect limitations on land use
intensities. How can zoning reflect the limitations on land use
intensities (to an FAR no greater than 0.5 established by the
June 3, 1997 Charter Amendment) if a later Ordinance, (No. 98-
3118), provides for a designation of C-PS4 with an FAR of 2.5,
and the Comprehensive Plan as well as the statute require the
zoning ordinance to be brought into conformity with the City's
Comprehensive Plan elements? There 1s an irreconcilable
inconsistency and conflict between the limitations of the Charter
Amendment and the provisions of the recent zoning ordinance
amendment. Accordingly, the Department should find that the
proposed zoning ordinance amendment would not preserve the
internal consistency of the comprehensive plan, as required by
Sec. 163.3187(2).
(f) Demand for relief. Request that the Department find an
effective inconsistency 1n the effect upon the City's
Comprehensive Plan caused by the Ordinance of April 15, 1998,
which conflicts with and is precluded by the Charter Amendment of
June 3, 1997.
Request that the Department advise the City of Miami Beach, in
the alternative, if it desires reconsideration of a zoning
redesignation for the subject parcel of land. Either:
6
(1) Resubmit the amendment with evidence of voter approval,
(as per the Charter Amendment); or
(2) Resubmit an amended ordinance duly adopted, providing
for a land use designation permitting a floor area ratio no
greater than that existing as of the date of the Charter
Amendment -- Le., an FAR of 0.5. (The designation CD-l, "Low
Intensity Commercial", as per Policy 1.2 of Objective 1 of the
Future Land Use Element of the Comprehensive Plan, Part II), is a
designation available to the City that would permit comparable
uses to C-PS4, but at the reduced density/FAR required by the
Charter Amendment, without voter approval.)
Please call if you have any questions.
Please acknowledge receipt of this petition.
Sincerely, .
,~~
ENCLOSURES:
Plat of South Beach Park, (from City of Miami Beach, 1990
Inventory of City-Owned Property)
1994 Future Land Use Map, (portion showing "ROS" designation
for South Beach Park Parcel)
Text of City of Miami Beach Charter Amendment prohibiting
floor area ratio increases of property adjacent to Biscayne
Bay, without voter approval, (Approved by voters, June 3, 1997)
cc: Robert Parcher, City Clerk. (By mail, as required by the
Nov. 22, 1998 Notice.)
SP.071,12-7-98
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CHARTER A},I!ENDMENT
The tloor are" rt\tio of Ilny platted property or street end within th~ City of Miami Boaoh
ad.iac~rlt to the Atlantic Ooean, Govemmcllt Cut, Indian Creek, or Bisoayn~ Bay shall not bl;;
iJ,crensed by loning. transfer, 01' any other means from it$ cun'cnt zoned floor area ratio as it
exists on th~ dat~ of adoption of this Chart~r Amendment, i11~luding any limitations on floor
area ratio which arc in effect by virtue of development a\groem~.nts through the full.term of
such agl'eenwllts.. unless any such inorease in zoned floor area ratio-for l\l1Y such property shall
first be approved by n vote of tl1e electors ofthe City of Miumi Beaoh,
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This Charte;;r ,~nendmel1t Rhall beoome effe.ctive on the day.aftet' its approval by the voters of '
the City of tv1iatni Beach, No rights in derogation of the provisions of this AmCl1.dmc1}t under
"nIlY ordinance or' any other actiol' 0rth~ Miami Beach City Commission between the time this
petition is ccrtitied by th~ Dado County Supervisor of Elections' and the adoption of this '
am~ndment (;h~,11 be cnfQr~ed against the City of Miami Beach,
BALLOT QUESTTO~
'Shall the City of Miami Beaoh Charter be amel1ded to inolud'c a l'equir~ment for pub1i~ volt:
prior to any inCl'oase in floor area ratio of propelty ndj lloc;nl to th~ waterfront, which
requirement shall be in ~ffcot from Jt\J\. 31, 1997'?
Appr.>veJ I-y Vo~ts, [tI"c. ;.'997.
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RECt=I\/ED
Gilbert Zriny
329 Jefferson Avenue 98 OEe 23 Pi'1 I: I 9
Miami Beach, FL 33139
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Dec.21, 1998
Ms. Marla Dwnas
Redevelopment Coordinator
Miami Beach Redevelopment Agency
1700 Convention Center Drive
Miami Beach, FL 33139
RE: DOCKET NO. 98DI-NOl-1316-(A)-1
STATE OF FLORIDA DEPARTMENT OF COMMUNITY AFFAIRS
PETITION FOR AN ADMINISTRATIVE HEARING
Dear Ms. Dwnas:
You called to request that I meet with you and Dean Grandin,
Director of Planning and Zoning, to discuss my petition of Dec.
7, 1998 to the State DCA for an administrative hearing
challenging a pending agency determination concerning an
amendment by the City of Miami Beach to its Comprehensive Plan.
Would you be so kind as to provide me first with certain
information'?
Under the State's Administrative Rule governing such a hearing,
after filing, the (state) presiding officer may direct the
parties to confer for various purposes, including entering into
a prehearing stipulation, and discussing the possibilities of
settlement. (Rule 28-106.209 F.A.C.)
Have you or Mr. Grandin been designated by the City, as a party,
to represent them in this matter'?
Have you or Mr. Grandin been authorized by the City, as a party:
To enter into a prehearing stipulation'? To discuss a settlement'?
~Sin~e~'~lY' <~ "
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. ert Zr4fty';
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cc: Agency Clerk
Department of Community Affairs
2555 Shwnard Oak Blvd.
Tallahassee, FL 32399-2100
Robert Parcher, City Clerk "..",.--'
SP.072,12-21-98
Gilbert: Zriny
329 Jefferson Ave.
Miami Beach, FL 33139
RE:
DCA Case No. DCA98-GM-232
Gilbert Zriny, Petitioner, vs. City of Miami Beach and
Department of Community Affairs, Respondents
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Dec. 26, 1998
Agency Clerk
Office of General Counsel
Department of Community Affairs
2555 Shumard Oak Blvd.
Tallahassee, FL 32399-2100
ATTN: Stephanie Druer, General Counsel, DCA
Dear Department of Community Affairs:
I was contacted by Ms. Marla Dumas, Redevelopment Coordinator,
Miami Beach Redevelopment Agency, regarding this case. As her
Dec. 24 letter explains, she desired to meet informally to
discuss narrowing the issues involved and whether there was any
possibility of settling the matter without protracted litigation.
Enclosed is a copy of my reply, this date. Please note that I
believe the issue can be framed very narrowly, and that the
matter can readily be settled, by the City taking whatever steps
are necessary to conform the ordinance in question to the Charter
Amendment, or adopting an amending ordinance that retains a floor
area ratio no greater than 0.5 for the parcel concerned.
~in rely, ...
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r lbert 'If.1.ny /
ENCLOSURES: Letter of Dec. 21, 1998, G. Zriny to M. Dumas
Letter of Dec. 24, 1998, M. Dumas to G. Zriny
Letter of Dec. 26, 1998, G. Zriny to M. Dumas
cc: Cliff Shulman, Esq. and Debbie Orshefsky, Esq.
515 E Las Olas Blvd.,Ste.1500,Ft. Lauderdale, FL 33301-2268
Murray Dubbin, Esq., City Attorney
1700 Convention Center Dr., Miami Beach, FL 33139
Karen Brodeen, Esq., Ass't. Gen. Counsel, DCA
2555 Shumard Oak Blvd., Tallahassee, FL 32399-2100
Robert Parcher, City Clerk
1700 Convention Center Dr., Miami Beach, FL 33139
SP.076,12-26-98
Gilbert: Zriny
329 Jefferson Ave.
Miami Beach, FL 33139
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Dec. 26, 1998
Ms. Marla Dumas
Redevelopment Coordinator
Miami Beach Redevelopment Agency
1700 Convention Center Drive
Miami Beach, FL 33139
RE: DCA Case No.: DCA98-GM-232
Gilbert Zriny, Petitioner. vs. City of Miami Beach and
Department of Community Affairs
Dear Ms. Dumas:
Thank you for your letter of Dec. 21, explaining the City's
practice when an appeal is filed.
I am enclosing a copy of my amended petition, Dec. 24, in which I
believe I provided the documentation necessary for the DCA to
find that I satisfy the "standing" requirement to qualify as a
petitioner in their pending determination.
Regarding "narrowing the issues involved", I raised only a single
issue in my Dec. 7 petition, which is very narrow in scope:
That the City's April 15, 1998 ordinance increased
the floor area ratio for a parcel of land adjacent
to Biscayne Bay without voter approval as required
by the June 3, 1997 Charter Amendment.
Regarding settling the matter, my petition (paragraph (f), pages
5 and 6), requested that the City either: (1) resubmit the
amendment with evidence of voter approval; or (2) resubmit an
amended ordinance duly adopted, providing for a land use
designation that would permit a floor area ratio no greater than
0.5, (as. for example, a CD-1 designation). A third option, of
course, would be for the City to take the steps necessary to
retain the ROS designation for the parcel.
:41n rely, '"
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ENCLOSURE
cc: Dean Grandin, Director, Planning and Zoning
Murray Dubbin, City Attorney
vrRobert Parcher, City Clerk
SP.074,12-26-98
Miami eeach
RedoVflopment AQency
1100 C~nvonllon Cent.r CrlvtJ
Miami Beach, Florid' 33139
hl.phon.: (305) 673.7193
F&lC (305) 673-1772
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f)ccemb~r 24, 1998
O~ar Mr. Zriny:
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(;ilb~rt Zriny
329 Joftbraon Ay~nl.le
M.lami 13cach, FL 33139
This is in N:~ponse to your letter of December 21, 1998.
Please be advi~d thaI! contacted you to set amcetiJ'lg vnth Dean (}rMdin a.nd me f10 that we could
adhere to the customary proce,s that the City of Miami Beach follows wh\.ln tU\ appeal jg filed. In
the event that the per,on fiJini an appeal is represented by CDun~e\, we would also havlZ contacted
your attorney Ilnd included the City Attornc:y's office in the meetin.g,
Our r~que~t to meet \'lith you wt\.S only to afford you the same court~\lY i1S cxtcncl~d to others who
have ftIed ap~als In the past; that is, to meet infotmally to discuss nwnwin~ the isslJ\:s involwd
and whether there was any possibility of sottling the matter without protracted htiwation. However,
5inc~ the appeal hus now beel"l dismissed, there may be no need to mc~t with YOIJ at this time.
Sln~crcly\
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Marla ~. O\.!miU
Redevelopment Coordinator
MSJ):dl
c: Dean Grandin
r"ddhP\SIII'IllwlJ11.i J)VI~~
1)(~e~'el()pnlent VIStr1ct
(~,..n'" (~~"'T~L)
IJ~C"'CI()ltnlent L)lstr1(',l
Dec. 24, 1998
VIA CERTIFIED MAIL,
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NO. Z 366 117 414
Gilbert Zriny
329 Jefferson Ave.
Miami Beach, FL 33139
Agency Clerk
Office of General Counsel
Department of Community Affairs
2555 Shumard Oak Blvd.
Tallahassee, FL 32399-2100
RE: AMENDED PETITION, DCA Case No. DCA98-GM-232
Gilbert Zriny, Petitioner, vs. City of Miami Beach and
Department of Community Affairs, Respondents.
City of Miami Beach Comprehensive Plan Amendments,
Package 9801-NOI-1316-(A)-(I).
ATTN: Stephanie Druer
General Counsel,
Department of Community Affairs
Dear Department of Community Affairs:
Thank you for providing me an opportunity to amend my Petition of
Dec. 7, to correct the omission of information necessary to
establish my status as an "affected person", and drawing my
attention to the applicable provision of the statute.
My Petition noted that I am resident property owner in the City
of Miami Beach, but did not provide information on how and when I
objected to the proposed Plan amendments during the local
government review and adoption proceedings. F.S. 163.3184(l)(a):
"Each person ...shall also have submitted oral or written
comments, recommendations, or objections to the local government
during the period of time beginning with the transmittal hearing
for the ...plan amendment and ending with the adoption of
the.,.plan amendment."
Enclosed is a copy of the City Commission Agenda for its duly
noticed public hearing of Dec. 17, 1997 on the proposed ord~nance
which is the subject of my Petition. Agenda item R5F lists the
Public Hearing, First Reading, for the Ordinance Amending the
Future Land Use Map Category "by Changing the Land Use
Designation for the Property Known as the 'Former Park Parcel'
from ROS (Recreation and Open Space) to C-PS4 (Commercial
Intensive Phased Bayside)...(etc.)".
The second enclosure is a copy of my memorandum of Feb, 23, 1998
memorandum to the Mayor and Commissioners objecting to this
"Change of Land Use Designation".
2
The third enclosure is a memorandum, March 10, 1998, from the
City Attorney to a Commissioner, that confirms the receipt of my
February 23 memorandum.
The fourth enclosure is a copy of the April 1, 1998 Commission
Agenda for its Public Hearing, Second Reading, on the Ordinance
Amending the Future Land Use Map Category for the subject parcel
from ROS to C-PS4. (Agenda item R5F.)
In addition to my correspondence, during the period between the
public notice for the Public Hearing on the proposed amending
ordinance and the final adoption of the amending ordinance, April
15, 1998, I objected specifically to its adoption to Commissioner
David Dermer and to Commissioner Martin Shapiro. I testified at
both public hearings objecting to various elements of the agenda
implementing the overall development program.
Your December 17 Order made reference to the applicability of
Subsection 163.3184(9), Florida Statutes. Subparagraph (a) of
that subsection states that "if the local government's
determination of compliance is fairly debatable", the plan
amendment shall be deemed to be in compliance. It may be
premature for me to address that standard here, but my December 7
Petition, especially paragraphs (2)(d)2,3,4,5 and 7, establish
that the determination of compliance is not "fairly debatable" as
the amendment adopted is, on its face, wholly and directly in
violation of the governing City Charter Amendment.
Please advise me if any further information is necessary. I
believe that I have satisfied the statutory requirements to be
recognized as an affected person eligible to file a petition for
an administrative hearing to challenge the proposed Agency
determination.
4lin'/ rely,
, /:?tr:;/.. ~~7~..~
,,~ Ibert a~~
I
ENCLOSURES
cc: Cliff Shulman, Esq. and Debbie Orshefsky, Esq.
515 E Las Olas Blvd., Ste. 1500
Ft. Lauderdale, FL 33301-2268
Murray Dubbin, Esq., City Attorney
1700 Convention Center Drive
Miami Beach, FL 33139
Karen Brodeen, Esq., Ass't. Gen. Counsel, DCA
2555 Shumard Oak Blvd., Tallahassee, FL 32399-2100
Robert Parcher, City Clerk, 1700 Convention Center Dr.
Miami Beach, FL 33139 SP.073,12-24-98
-.-..-......----
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TO:
Mayor Nei.en Kasdin and
February 23, 1998
Members of the City Commission
FROM:
Gilbert Zriny
327 Jefferson Ave.
672-8817
SUBJECT:
R5F Commission Memorandum NO. 110-98
D&ar Mayor and Commissionerl!
With reference to the above subject item on the 2/18/98 Regular
Agenda vote/~~end the Compo Plan by Changing the Land Use Desig-
nation for South Beach Park "rormer Park Parcel" from ROS to CPS4,
to correct a scrivener error on land up-zoned in 1989 per Legal.
1.
Why is a vote required to correct a typo?
2.
Why isn't "scrivener error", "1989 Up-Zoning" wording in Amendment'
0)
Why isn't the '.Save Our ParkS"j "Save Miami Beach" referendum
applicable to th4t "Chang" of Land Use Designation" requiring
a City Commission vote?
I look forward to your reply.
4:~~1
"
(~
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CITY OF MIAMI BEACH
OFFICE OF THE CtiY ATTORNEY
l.'IIEl\'lO RAND urvt
TO:
Commissioner David Dermer
FROM:
Murray H, Dubbir, I rr. ~V
City Anorney I'J]I II
SUBJECT:
Former Park Parcel- Furure Land Use Designation (Response to Memorandum dated
February 24, t 998)
DATE:
March la, 1998
Your memornndwn referenced above, which had attached an inquiry from Gil Zriny to the
Mayor and Comm~ssioners dated February 23, 1998, posed certain questions regarding the statuS of
the "Former Park Parcel" .(park Parcel), and the proposed amendment to the Comprehensive Plan
to correct the Future Land Use Map (FLUNf) designation for same from ROS to C-PS4. In order
to respond to your request, we have investigated the history of the redesignation of the Park ParceL
Our research revealed the following Commission actions:
1. In 1986, pursuant to Ordinance No. 86-250 I, the zoning designation for the
Park Parcel was amended from MU (Municipal Use) to C-PS4;
2. In 1989, consistent Ylith the Commission action of 1986 (referenced above),
Ordinance Nos, 89-2664 (Comprehensive Plan) and 89-2665 (Zoning
Ordinance), were adopted which indicate that the Park Parcel's FLUM
designation was C-PS4 and the zoning map designation was C-PS4;
--
..
j.
In 1994, pursuant to Ordinance No. 94-2928, amendments to the
Compreht:nsive Plan (including the fLVM) were adopted. The: revised-
FLUM referenced a designation for the Pari< Parc~l as ROS.
A review of the documentation submitted to the Commission in suppon of the 1 q94
amendments to the Comprehensive Plan and FLT no {' I . '
th h U lv~ me ude, among other things maps indicating
m:p~e: :~g:tfiLoUMdPr~pose,d forlre~esignation. The Park Parcel is not incl~ded within su~h
r re eSlgnatlOn. t IS worth noti th th
proposed forrectesignation in 1994 was the land d "ng at e par,eel closest to the Park Parcel
FLUM was adopted with cert<lin revisions but .~slgnated ~1R (Manne Recreation), The proposed
W1 out an amendment to the Park Parcel designation
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In conclusion. th~ Commission action in 1986 effectwlted a redesignation of the Park Parcel
to C-PS4. Said designation W:lS correctly retlected on City maps subsequent to the c::ffective date:
of the applicabk Ordin.met: until 1994. In the process of adopting amendments to the
Comprehensive Plan in t 994, a scrivener's error occurred <l!id the site W:J.S incorrectly referenced On
the FL UM as ROS.
?
Widi resp~ct to the qllestion reg:uding the procedW'al requirements to correct the scrivener's
error, the vote of the Commission to amend the FLUM by revising the d~signation is primarily a
ministerial act. However. since th~ Admlnistration is not specific:1l1y empowered to editorially
correct adopted legislation. processing the correction as an amendment. and having a Commission
hco.ring and vote. is the appropriate, cautionary procedure to effectuate the ame:1dment.
Finally. the history ofche above P::J.rk P:ucellndicaces it was designated C.PS4 by th~ Cir;
Commission in 1936. and nosubseque:1t Commission action ch<l!iged such designation, H:e
proposed .:uner.dmenc co the Comprehensive Plan will effectuate a correction. not a redesignat:on,
Thus, any increase in FAR by designating the Park Parcel C~PS4 from ROS or MU actually
occurred in 1986. Accordingly, the proposed amendment to the Comprehensive Plan and FL l(v(
co correct the P~k Parcet design:ltion is not impncted by the Charter provision approved on June 3,
1997 regarding incre:1ses in FAR.
I have retained copies of each of the documents referenced abOve. If you would like to
review same, or have any questions regarding the above, please feel free to contact me.
cc: Dean Grandin, Deputy Director PDHP
Dan Paul, Special Counsel
t)Cl"kw
, V. "'OIG~\Jtl\MliMOS''',~PIlCl.,OEIl
Regular A~enda
December 17. 1997
City of Miami Beach
:as - Ordinanet (Continued)
R5F Commission Memorandum No, 788-97 (page 220)
Public Hearine5 re:ardin.: pQrtofino . !:Ol pIm. - Fint Readina (Continued)
AL TERNA TIVE APPLICA nONS - DISTRIBUTED UNDER SEPARATE COVER
(~-~)
Comprehensive PI.n Amendmeat
Ordinance of the Mayor and City Commission of the City of Miami Beach, Florida, by Amending
the Future Land Use Map Category of the City of Miami Beach. Florida Year 2000 Comprehensive
Plan by Changing the Land Use Designation for the Property Known as the "Fonner Park Parcel"
from ROS (Recreation and Open Space) to C-PS4 (Commercial Intensive Phased Bayside), the
Property Is More Particularly Described in the Legal Description Attached to the Ordinance; and
Amending Pan Ii: Goals, Obje ives and Policies of t e City of :Miami Beach Year 2000
Comprehensive Plan, as Amended, b ndin Poli 9,2 fOb' ective 9: Redevelopment of the
Future Land Use Element; Directing ransmittals of this 0 dinance and All Applicable Documents
to Affected Agencies; Providing for Repealer, Severability and an Effective Date,
South Shore Revitalization Stratt&)' (Submitted by CityIRDA)
2a An Ordinance Approving Amendments to the "South Shore Revitalization Strategy", an Approved
Redevelopment Plan under the Provisions of Sections 163.360 and 163.361, Florida Statutes, by
A:- prOviding., That the South Shore Revitalization Strategy Shall Control Except When Properties Are
Governed by the SSDI Develo m . 7 1986 or a Validly Existing
I to Regio pact Development Order ("DOll) in Which Case the Provisions of the
rJ Or( e--- SSDl Development Agreement or DO Shall Control for Terms, Provisions, Matters or Issues
16.- Specifically Addressed in Such Agreement or DO and Providing an Extension for the Completion
p (i .( Date for the Strategy and Modifications to the Parking Provisions Providing for Severability; and
0.<" Providing for an Effective Date. Joint City Commission and Redevelopment Aleney.
~ 1)y
7 J
2b
South Shore Revitalization Strategy (Submitted by Portofioo)
.An Ordinance Approving Amendments to the "South Shore Revitalization Strategy," an Approved
Redevelopment Plan under the Provisions of Sections 163.360 and 163,361, Florida Statutes, by
Providing That the South Shore Revitalization Strategy Shall Control Except When Properties Are
Governed by the SSDI Development Agreement Dated April 17, 1986 or a Validly Existing
Development of Regional Impact Development Order ("DO"), in Which Case the Provisions of the
SSDI Development Agreement or DO Shall Control for Terms, Provisions, Matters or Issues
Specifically Addressed in Such Agreement or DO and Providing an Extension for the Completion
Date for the Strategy and Modifications to the Parking Provisions; Providing for Severability; and
Providing for an Effective Date. Joint City Commission and Redevelopment Agency.
City Code Change
3. An Ordinance Amending Section 2-72.1 of the Code of the City of Miami Beach, Florida, to
include therein the Latest Amendments to the South Shore Revitalization Strategy Plan Adopted
on February 15, 1984; Repealing all Ordinances and Resolutions in Conflict Herewith; Providing
for Severability; codification; and Providing for an Effective Date,
VI.
Regular Agenda
April I, 1998
City of Miami Beach
R~ - Ordinances (Continued)
R5E Conunission Memorandum No. 204-98 (Page 222) Distributed under Separate Cover
An Ordinance Amending Section 2-72.1 of the Code of the City of Miami Beach, Florida, to Include
. test Amendments to the South Shore Revitalization Strategy Plan Adopted on
ruary 15, 198 Repealing all Ordinances and Resolutions in Conflict Herewith; Providing for
Sev ty, ation, and Providing for an Effective Date. 5:00 D.m~ Public Hesrine_ Second and
Final Readine
Administration Recommendation: The Administration is recommending that this item be withdrawn,
(Cormnunity/Economic Development)
(Continued from 3/18/98)
(Hear in Conjunction with RSD, R5F, R7A. R7B, R8A)
Action:
Moved:
Seconded:
Vote:
@"'R5F onunission Memorand~m No. 205-98 (Page 223) Distributed under Separate Cover
Public Hearin2s revardine 'Orlanno - ~:OO p.m. - First Readina
/'
-- ALTERNATIVE APPLICATIONS - DISTRIBUTED UNDER SEPARATE COVER
Comprehensive Plan Amendment
1, An Ordinance Amending the Future Land Use Map Category of the City of Miami Beach, Florida,
Year 2000 Comprehensive Plan by Changing the Land Use Designation for the Property Known
as the "Former Park ParcelH from ROS ecreation and 0 en S ace to C-PS4 Commercial
ntensive Phased Ba~side)t the Property Is More Particularly Described in the Legal Description
~ A:ttacned to the Ordinance; and Amending Part II: Goals, Objectives and Policies of the City of
Miami Beach Year 2000 Comprehensive Plan, as Amended, by Amending Policy 9,2 of Objective
9: Redevelopment of the Future Land Use Element; Directing Transmittals of this Ordinance and
. All Applicable Documents to Affected Agencies; Providing for Repealer, Severability, and an
Effective Date, C\Cb~~ ~
~~v(~'V \
lV
RECEIVED
Gilbert: Zriny
329 Jefferson AVe.
Miami Beach, FL 33139
Tel. (305) 672-8817
VIA CERTIFIED MAIL, NO. Z 366 117 415
99 JM~ !!. PM 3: r.. I
iT i l..Efh'i'S OFFICE
Jan. 13, 1999
Karen Brodeen
Assistant General Counsel
Department of Community Affairs
2555 Shumard Oak Blvd.
Tallahassee, FL 32399-2100
Re: Comprehensive Plan Amendments: Docket No.98-NOI-1316-(A)-(1)
Response to West Side Partners, Ltd. 's Motion for Sanctions
Dear Ms. Brodeen:
Yesterday I received by mail a copy of a Motion for Sanctions
against me from the attorney for West Side Partners, Ltd. I
assume the motion was filed with your office.
West Side asks that you order me to pay money damages and
attorney's fees to them claiming that the petition I sent to the
state was not filed in good faith. That is not true. I filed the
petition as a matter of principle, based on your statute. I
campaigned for a Charter Amendment in the City of Miami Beach in
1997, and I believe that the ordinance amending the comprehensive
plan without the voter approval required creates an inconsistent
conflict within the comprehensive plan.
West Side says that my filing was not in good faith because I
didn't cite the statutory references necessary in order to argue
that adopting the amendment under consideration would make the
City of Miami Beach's comprehensive plan internally
inconsistent; and that therefor my inquiry wasn't reasonable.
That is not true. I did make an applicable citation. This is
simply a matter of conflict between a Charter provision and an
ordinance amending the comprehensive plan that on its face
violates the Charter.
I am frightened by West Side's motion that you order me to pay
money damages for their lost time and their attorney's fees.
They have a big project and expensive attorneys and could make a
very large claim. I have absolutely no financial interest in the
outcome of this matter, have not engaged an attorney and do not
intend to do so. If I did, and engaged in a legal battle with
West Side, they would claim further delays and higher legal
costs. I feel harassed by their motion, but I am certainly not
going to file a motion for sanctions against them, because their
claim of costs would escalate. My request is that you make as
expeditious a disposition of West Side's motion, and the entire
case, as soon as possible. I do not want to delay this matter.
1
2
or cause the state or West Side expenses or legal fees.
Set out below is a fuller explanation of why I believe I clearly
met my reasonable responsibilities in my petition,
I made the necessary statutory citations
West Side says that I did not cite the proper statutory
provisions to show that the amendment proposed was not consistent
with a subsection listed in F.S. 163.3184(1)(b): i.e., 163.3177,
163.3178, or 163.3191, or with other requirements. That is not
accurate. I cited 163.3177. Please see page 5 of my Dec. 7,
1998 petition letter, paragraph number 6, where I argued that
under subsection 163.3177(2), the city ordinance submitted
violates the Charter Amendment, and therefor would render the
Comprehensive Plan internally inconsistent because zoning
pursuant to a comprehensive plan amendment providing for higher
densities would conflict with the Charter Amendment prohibiting
higher densities without voter approval, which had not been
obtained.
My petition was based on a reasonable inquiry into the ordinance
and the City Charter, and the statutory provisions cited in the
State's Notice.
West Side asks that you order me to pay damages, claiming that my
filing was not in "good faith". That is not true. I cited, to
the best of my ability, the sections of the statute that are
applicable to the requirement for "compliance" under section
163.3184(1), spelled out in your Nov. 22, 1998 public notice.
Paragraph 4 of West Side's motion lists the good faith filing
requirements of section 163.3184(12). The party or his
attorney's signature certifies that the matter submitted has
read by him, and made a reasonable inquiry into the matter.
submission is not to be interposed for any improper purpose,
as:
been
The
such
to harass or to cause unnecessary delay,
or for economic advantage,
competitive reasons,
or frivolous purposes or needless increase in the cost
of litigation.
I made a very reasonable inquiry. I submitted a petition in
response to the DCA's Notice of Intent. I made a reasonable
inquiry into the statutory basis for the petition. The
conclusion I made that the internal consistency of the
comprehensive plan could not be preserved if the amending
ordinance was approved, was reasonable on its face, because of
the clear conflict between the density increase that would be
permitted by the ordinance, which would violate the pre-existing
Charter Amendment since voter approval had not been obtained.
3
My purpose was not "improper" under the statute (or any other
reasonable standard).
My purpose was not "frivolous". It was not designed to
"harass" or "cause unnecessary delay". I petitioned for the
Charter Amendment in 1997, and campaigned for voter approval.
I believe its provisions should be honored. The ordinance was
enacted after the Charter amendment was adopted. I registered my
objections to the ordinance being inconsistent with the Charter
Amendment during the period that the ordinance was being
considered by the City Commission. When the State DCA, by public
notice, advised that an affected person had the right to
petition, I did so in good faith.
I would gain no economic advantage from a decision in my
favor.
I do not compete with West Side Partners.
I am not involved in any litigation concerning this matter.
My petition can be efficiently dealt with. All material and
"ultimate facts" in my petition are, I believe, public documents
or public records.
My petition is simple, direct, and clear cut. The only issue I
pose is the failure of the city ordinance amending the
comprehensive plan and increasing density to comply with the
Charter Amendment requiring prior voter approval. I believe that
this conflict renders the Comprehensive plan internally
inconsistent and therefor not in compliance.
I do not believe that there are or will be disputes of material
fact. All the facts supporting my petition are on the public
record, consisting primarily of the Charter Amendment, the
ordinance amending the comprehensive plan, and the other facts
listed in my Dec. 7, 1998 petition, page 3, item (d), plus the
"ultimate facts" listed in paragraph (e), pages 4 and 5.
I have responded very quickly to all requirements in this matter,
causinq no delays
It should be clear that I have absolutely no purpose in
procrastination, or delaying any aspect of this case.
I filed my petition Dec. 7, 1998 (by mail and by fax), five days
prior to the expiration date for filing.
You issued a Dec. 17 order dismissing my petition with leave to
amend, and I submitted a Dec. 24 amended petition.
4
I received a copy of a Motion for Sanctions yesterday, Jan. 12,
and I am answering it today, Jan. 13.
I request that you deny West Side's Motion for Sanctions
I filed my petition in good faith after a public notice by the
DCA pointing out that an affected person has a right to petition
for an administsrative hearing to challenge a proposed agency
determination.
I filed my petition without employing paid counsel. This was a
matter, a Charter Amendment, on which I had been a citizen
volunteer many months before the City Commission enacted the
ordinance to which I had objected, that I believe, reasonably, on
its face, violates the Charter Amendment, and creates an internal
inconsistency in the City's Comprehensive Plan.
I believe this case can be decided on a documentary record, and
does not require discovery, witnesses, and other time-consuming
fact-finding procedures. I included in my petition a recitation
of all the facts I thought necessary and applicable.
I have no economic or financial interest in this matter, and
desire the most rapid disposition of this case, one way or
another. I sought an opportunity for impartial state review in a
situation of clear conflict between an ordinance and a charter
provision bearing directly on a comprehensive plan determination
to be made by your agency.
I request that you make an immediate disposition of the Motion
for Sanctions, in my favor, denying the motion.
Si~~y
~~~~
cc: Ann Cole, Division of Administrative Hearings
Paula Ford, Acting Agency Clerk
Cliff Shulman, Esq.
Debbie Orshefsky, Esq.
Murray Dubbin, Esq.
~Robert Parcher, Clerk, City of
Miami Beach
SP.O??