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File Ref. #127 el'/fl (!ltJttC. /l.er 1'1127 IJoc .b /Hf I BEFORE THE CITY OF MIAMI BEACH, FLORIDA, A MUNICIPALITY OF THE STATE OF FLORIDA KENT HARRISON ROBBINS, co.; \.c.~ c~ c:::;l Cj"'\ r> ,J o ,- -" Plaintiff, ~--, vs. c: \~. rl"", ::-c :;:1".. CITY OF MIAMI BEACH CITY COMMISSION, !'::. (J) -... ~ 9 -n C; rn Defendant. / CITY OF MIAMI BEACH'S ANSWER AND AFFIRMATIVE DEFENSES TO VERIFIED COMPLAINT PURSUANT TO ~163.3215(1), FLA. STAT. The City of Miami Beach City Commission ("CMB Commission") pursuant to ~163.3215(4), Florida Statutes, hereby files its' answer and affirmative defenses to KENT HARRISON ROBBINS' ("ROBBINS") Verified Complaint and states: 1. The CMB Commission admits that complainant ROBBINS is the owner of real property located in the City of Miami Beach consisting of a City block on the West side of Collins Avenue between 76th and 77th Streets; legally described as Lots 1-6, Block 23 of the Corrected Plat of Altos Del Mar, Number 1 Subdivision, as recorded in Plat Book 31, Page 40 of the Public Records of Miami-Dade County, Florida (hereafter referred to as the "property"). 2. The CMB Commission admits that on November 4, 1998, at a hearing before the CMB Commission, the CMB Commission approved a change in zoning designation of the"property" from RM-21 to RM-l. IThe RM-2 residential multifamily, medium intensity district is designed for medium intensity multiple-family residences (See Sec. 142-211 CMB Code) The main permitted uses in the RM-2 residential multifamily, medium intensity district are single-family detached dwellings; town homes; apartments; apartment-hotels; and hotels. (See Sec. 142-212 CMB Code) Conditional uses in the RM-2 residential multifamily, medium intensity district are adult congregate living facility; day care facility; nursing home; religious institutions; private and public institutions; schools; commercial or noncommercial parking lots and garages; and accessory neighborhood impact establishment, as set forth in article V, division 6 of chapter 142. (See Sec. 142-213 CMB Code) The development regulations and area requirements for the RM- 2 impose aFAR (Floor Area Ratio) of 2.0. 1 ,n C) '\1 - ,,!:::::. rf\ ~::) .r;:- <.J1 The CMB Commission denies that the approved change in zoning designation or change in the zoning map designation, or the change in permitted uses, or the change in FAR (Floor Area Ratio) or the change in height allowed on the "property" is inconsistent with the Miami Beach Comprehensive Plan. The CMB Commission, prior to the November 4, 1998 action complained of by ROBBINS, considered, relied upon and stated its intention to utilize the Plater-Zyberk plan study titled "Development Plan and Design Guidelines for the North Beach Neighborhood." The CMB Commission also rezoned to RM_12 the adjacent blocks to the "property" and in fact, downzoned the Entire District 37 of which this "property" is a part, as well as the major part of District 33 as part of a comprehensive downzoning from RM-2 to RM-l as recommended by Planning Department, the Planning Board, Development Regulations planning workshop sessions and the Plater-Zyberk plan study. ROBBINS' "property" was not singled out for the RM-I downzoning. The CMB Commission denies that FAR, intensity and density allowed under the RM-I zoning regulations is inconsistent with RM-2 designation under the comprehensive plan. The CMB Commission admits that RM-2 has a permitted use of "hotels and apartment hotels" which is not a permitted use under a RM-I designation (except if permitted by an overlay at a future date). Further, Conditional uses (defined in Sec. 142-153 CMB Code) and Accessory uses - (defined in Sec. 142-154 CMB Code) are restricted as set forth in the Code. 3. The CMB Commission denies that the reduction in FAR and height reduces the feasibility of family sized apartments with three bedrooms. The FAR only limits the total square footage of a project; if ROBBINS wants to construct 3 or even 4 bedroom units, he may do so. The comprehensive plan does not mandate that the "maximum" number of units permitted, be all 3 or 4 bedroom units. The corollary to construction of "maximum" number of units, is to develop a mixture of I bedroom, 2 bedroom and "family sized" units of 3 bedrooms. The larger 2The RM-l residential multifamily, low density district is designed for low intensity, low rise, single-family and multiple-family residences. (See Sec.142.l5l CMS Code) The main permitted uses in the RM-l residential multifamily, low density district are single family detached dwelling; town homes; apartments; and bed and breakfast inn (pursuant to article IV, division 7 of chapter 142). The conditional uses in the RM-l residential multifamily, low density district are adult congregate living facility; day care facility; nursing home; religious institutions; private and public institutions; schools; and commercial or non commercial parking lots and garages. (See Sec. 142-153 CMS Code) The development regulations and area requirements for the subject property (and all other properties commonly referred to as the "Trammel Area) impose aFAR (Floor Area Ratio) of 1.4 (See Sec.142.l55 CMS Code.) units, which obviously consume more square footage than smaller sized units, limit the total number of units in the project. Deny that the reduction from RM-2 to RM-l zoning classification is contrary to or inconsistent with the mandate in Objective 2 and Policy 2.2 of the Future Land Use of the Comprehensive Plan; the Objective and Policy need not be applied to all districts within the City. The CMB Commission believed that the existing character of the neighborhood in District 37 should be the controlling element. Deny that the subject rezoning is a direct disincentive for the construction of larger family units. ROBBINS', prior to the passage of the downzoning for District 37, submitted his application to build "Seaside Villas"; that application was approved by the City's Design Review Board and under the equitable estoppel provisions of the Zoning Ordinance is not presumed to be subject to RM-l Zoning. ROBBINS is not an aggrieved or adversely affected party on the issue on "family sized units" 4. Denied. The Planning Department's original recommendation to the Planning Board on June 23, 1998, regarding District 37, was to recommend approval of rezoning the area from RM-2 to RM-l. The basis for this recommendation was that this is a reduction in density and intensity of this multifamily residential area, which is more consistent with the predominant 2 story as-built character of the area. In addition to recommending that the area be rezoned to RM-l, recognizing the existence of a few hotels in the area, especially along the Harding Avenue corridor, the Planning Department recommended that the Planning Board direct staff to begin reviewing the possibility of allowing hotels in the RM-l district in certain areas on specified streets. The Planning Board voted to recommend that the subject area be rezoned to RM-l, as recommended by the Planning Department. Upon bringing the proposed amendment to the CMB Commission, the Administration, recognizing the existence of the few hotels in the area, especially along the Harding Avenue corridor, and the proposed reduction of FAR and Heights for the RM-2 district, originally recommended that this area remain RM-2. Upon further study, the Administration concurred with the CMB Commission's decision at first reading to rezone the area to RM-l, as the issue of hotels along the Harding Avenue corridor could be addressed in the future with the use of an overlay district which would allow for hotels in that area. Additionally, as the area may be proposed for historic designation in the future, bed and breakfast inns would also be allowed, as such uses are permitted in historic districts zoned RM -1; this future change could also address the issue. The Baltic Hotel on the South side of 77th Street became a legal non-conforming use (grandfathered) when the zoning change was made in November 1998. ROBBINS' "property was vacant land at the time ofthe zoning change and ROBBINS' did not have any application for hotel or apartment hotel filed with the City. ROBBINS only application, for which he has approval, is the "Seaview Villas" which is a residential apartment project; the "Seaview Villas" is also grand fathered under the pre-existing RM-2 zoning, so long as ROBBINS timely complies with the requirements of the development order for said project. 5. The CMB Commission denies that the change in the District 37 is inconsistent with the Comprehensive Plan. Additionally, the CMB Commission denies any allegations not specifically admitted or denied hereinabove. 6. The CMB Commission respectfully requests that the relief sought by the Complainant ROBBINS be denied. AFFIRMATIVE DEFENSES 1. The "City Commission" of the City of Miami Beach is not the proper entity which would be subject to the procedure under Section 163.3215, Florida Statutes concerning the filing of a Verified Complaint or the institution of an action for injunctive or other relief. 2. ROBBINS has no standing and is not an aggrieved or adversely affected party pursuant to Section 163.3215, Florida Statutes. ROBBINS' property is the subject ofa building application for a project known as "Seaside Villas," which is approved; ROBBINS' only needs to timely pick up his building permit, which has been available to him for at least six (6) months. ROBBINS' "Seaside Villas" is not subject to the downzoning for RM-2 to RM-l. 3. The City of Miami Beach Year 2000 Comprehensive Plan has been found to be in compliance with the Local Government Comprehensive Planning and Land Development Regulation Act by the State of Florida, Department of Community Affairs. 4. While ROBBINS' "property" has been the subject of downzoning in the past and has generated a number of appeals, previous action is not controlling in the case at bar. In the case of the City of Miami Beach v. Kent Harrison Robbins, 702 So.2d 1329 (Fla. 3d DCA Dec. 10, 1997) it was stated: "Infast growing [geographical] areas ... changes occur with great rapidity; it cannot, therefore, be said that, even where the same parties are involved an adjudication of the reasonableness of a zoning ordinance at any given time is necessarily res judicata or constitutes an estoppel by judgment in subsequent litigation between the same or different parties." The Appellate Court further stated: "As the circuit court correctly observed, "... there is nothing to prevent the City from downzoning this property as part of a comprehensive downzoningfrom RM-2 to RM-l as recommended in the ... [architectural) study.... " 6. The RM-l zoning for the subject "property" is consistent with predominant character of the "surrounding property" and, in fact, is consistent with the entire District 37. Vast areas in the City were equally subject to the same down zoning. ROBBINS "property" was not singled out for down-zoning. At the time of the CMB Commission's action there was substantial reason and competent evidence to support the Commission's action; the City adopted a well reasoned study of local architectural experts and considered extensive input from citizen workshops, and planning experts. The evolving rationale for the proposed changes to the City's Zoning Ordinance has been necessitated by the inappropriate character and intensity of new development in the City, which is not in keeping with the existing built pattern. 6(a) In the recent past, there have been examples of buildings developed within the City which do not fit with the existing scale of their respective surrounding neighborhoods, or the historical character of the City of Miami Beach. The goal of the subj ect zoning changes was to reduce the possibility of redevelopment of property which is not in keeping with the established character of the City and out of scale with the surrounding neighborhoods. The aim of the downzoning from RM-2 to RM-l, was to bring the Land Development Regulations into conformity with the existing as-build character of the various areas ofthe City, including predominant uses of land. 6(b) The proposals, as amended by the Commission upon first reading, were studied by the City's planning staff and were found to be consistent with the as-built character of existing neighborhoods. The benefits to the City from the implementation of these zoning changes include the improvement of existing neighborhood property values, the appropriate and compatible use of land vis-a-vis surrounding uses, the preservation of existing neighborhood character, the reduction of traffic congestion, and increased access to light, air, open space and view corridors. These benefits are especially important when viewed in the context of the City's need to ensure provisions for adequate hurricane evacuation, and the City's desires and intention to meet traffic concurrency. Importantly, also, these changes will bring a degree of predictability with regard to new development which will give assurances to neighboring property owners and residents that the character of their neighborhood will be preserved. The change in zoning from RM-2 to RM-1 was designed to directly benefit the quality oflife for residents of the City of Miami Beach, and ensure that the special characteristics which have made the City so popular are preserved for future generations. 6<0 The modification of the City's Zoning Map is an issue that was under study and consideration for a number of years. From at least 1995, the City's planning staff, various City advisory bodies, including the Miami Beach Planning Board and the Development Regulations Working group, have been examining the Zoning Map and developing recommendations for changes that would address issues of land use compatibility, and the harmonization of the Zoning Map with existing as-built conditions relative to densities and uses now present throughout the City. 6(d) The changes to the Zoning Map were the subject of Planning Board workshops on March 6, March 16 and April 7, 1998. Many of the map changes originated with Planning staff; however a large portion of the substance of the changes came out of the discussions and deliberations of the Planning Board as well as significant input from the general public in attendance at the three workshop meetings. The Planning Board held a public hearing on June 23, 1998, which was continued to July 28, 1998, at which time the Planning Board voted to recommend a number of the changes to the City Commission. Some of the changes to the Zoning Map consisted of changing the zoning district classification of an area to reflect more accurately the character and uses of the subject area. As such, the Zoning Map changes bring the zoning designations more into harmony with existing land use conditions in the City. Respectfully submitted. Murray H. Dubbin, Esq. City of Miami Beach City Attorney 1700 Convention Center Drive Fourth Floor, City Attorney's Office ~:6QZ;2, Robert Dixon, Esq. Deputy City Attorney Fla. Bar # 019870 Debora J. Turner, Esq. First Assistant City Attorney Fla. Bar # 379018 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing answer was mailed by regular u.s. Mail, to the Complainant KENT HARRISON ROBBINS, Esq. at 1224 Washington Avenue, Miami Beach Florida 33139 and simultaneously faxed to (305) 531-0150 and was hand delivered personally to KENT HARRI ON ROBBINS this th day of December, 1998.