RESOLUTION 89-19603 RESOLUTION NO. 89-19603
A RESOLUTION OF THE CITY COMMISSION OF THE CITY
OF MIAMI BEACH, FLORIDA, AUTHORIZING THE MAYOR
AND CITY CLERK TO EXECUTE A REVOCABLE PERMIT
FOR THE PURPOSE OF CONSTRUCTION OF A FENCE AND
GATE IN A PORTION OF THE EAST-WEST THIRTY (30)
FOOT RIGHT-OF-WAY BETWEEN BLOCK 5 AND BLOCK 1
OF DI LIDO ISLAND SUBDIVISION, ACCORDING TO THE
PLAT THEREOF AS RECORDED IN PLAT BOOK 8, PAGE
36 OF THE PUBLIC RECORDS OF DADE COUNTY,
FLORIDA.
WHEREAS, Marc and Ruth Cooper, of 51 East Di Lido Drive, Miami
Beach and George and Anne O. Batchelor, of 101 East Di Lido Drive,
Miami Beach, have requested a revocable permit (attached hereto)
for the purpose of construction of a fence and gate in a portion
of the East-west thirty (3 0) foot right-of-way between Block 5 and
Block 1 of Di Lido Island Subdivision, according to the plat
thereof as recorded in Plat Book 8 , Page 36 of the Public Records
of Dade County, Florida; and
WHEREAS, the City Attorney has approved it as to form;
NOW THEREFORE BE IT RESOLVED BY THE CITY COMMISSION OF THE
CITY OF MIAMI BEACH that the Mayor and City Clerk are authorized
to execute the revocable permit attached hereto, for the purpose
of construction of a fence and gate in a portion of the City right-
of-way on south side of Di Lido Island.
PASSED and ADOPTED this 10th day of May , 198* .
1
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P YOR
ATTEST:
l A n
' ')'7
CITY CLERK
APPROVED AS TO FORM:
LEGAL DEPARTMENT
Date: 5-4,,P/a7
PNB/rlw
OFFICE OF THE CITY ATTORNEY
c64 414A . (valid
F L O R I D A
ATED
ARNOLD M. WEINER P O BOX 0
gam \�
CITY ATTORNEY �K26
MIAMI BEACH, FLORIDA 33119-2032
=
TELEPHONE(305)673-7470
TELECOPY (305)673-7002
COMMISSION MEMORANDUM 11_:2.3.2.233—
TO: Mayor Alex Daoud and
Members of the City Commi••sio• 4y'0111111""""'
y Manager Mana er Rob Parkins
i
•
Arnold M. Weiner ;1
FROM: •
City Attorney
DATE: April 12 , 1989
SUBJECT: VACATION OF PUBLIC STREETS, ALLEYS AND RIGHT-OF-WAYS
At the April 4 , 1989, City of Miami Beach Commission Meeting, the
City Commission requested this office to review the procedure for
vacating public streets, alleys and right-of-ways and determine
what factual determinations must be made by the Commission in order
to vacate public streets, alleys and right-of-ways:
The City of Miami Beach City Commission is vested with authority
to adopt ordinances or resolutions exercising its power over public
streets, alleys or right-of-ways in order to vacate streets, alleys
or right-of-ways pursuant to Chapter 166, Florida Statutes and
Section 6 (b) , Miami Beach City Charter.
Public places and right-of-ways of a municipality are held in trust
by the City of Miami Beach for the benefit of the public to be used
for proper purposes; however, it is well settled that this public
trust concept does not prevent the abandonment, vacation or
discontinuance of streets when done in the interest of the general
welfare. Sun Oil Company v. Gerstein, 206 So. 2d 439 , 441 (Fla. 3rd
DCA 1968) . The key factor as expressed above is that the City
Commission exercising its authority must make a determination that
vacating a particular street would be in the best interest of the
general welfare. See: Hurt v. Lenchuk, 223 So. 2d 350 (Fla. 4th DCA
1969) ; Loeffler v. Roe, 69 So. 2d 331 (Fla. 1954) .
There is not a specific definition as to what constitutes the
"general public welfare" , however, the United States Supreme Court
has f oulid:
" [t]he concept of public welfare to be broad and
inclusive. . .The values it represents are spiritual as
well as physical, aesthetic as well as monetary. It is
within the power of the Legislature to determine that the
community should be beautiful as well as healthy,
spacious as well as clean, well-balanced as well as
carefully patrolled. " Berman v. Parker, 348 U.S. 26, 32 ,
75 S.Ct. 98, 102 (1954).
Because the definition of public welfare is so broad and inclusive,
a wide latitude of discretion is accorded to the government agency
by the law applicable . in such cases, and the exercise of that 31
discretion will not be disturbed in the absence of a clear abuse
1 AGENDA _ 3 •
ITEM
1700 CONVENTION CENTER DRIVE FOURTH FLOOR MIAMI BE, DATE 9
thereof or unless there occurs an invasion of property rights.
See: Sun Oil Company, supra at 440.
When a street is lawfully vacated the effect of the discontinuance
of a street or alley is to extinguish the public easement therein
and to relieve the municipality from responsibility for the
maintenance, repair or policing thereof. At the time the street
is vacated, title to the area vacated vests in the adjoining
property owners. Smith v. Horn, 70 So. 435 (Fla. 1915) ; Hurt v.
Lenchuk, 223 So. 2d 350 (Fla. 4th DCA 1969) . However, the fact that
title to the public place so vacated or discontinued may revert to
the adjacent owner is of no consequence if the power to vacate is
present and such power lawfully exercised. Loeffler v. Roe, 69
So. 2d 331 (Fla. 1954) , Woodlawn Park Cemetery Co. v. City of Miami,
Fla. , 104, So. 2d 851 (Fla. 3rd DCA 1958) .
The courts have indicated that a municipality may not vacate a
street to accommodate the needs and convenience of private
individuals nor may the sole or primary purpose of vacation be to
benefit the adjoining property owners. The street may only be
vacated to promote the public welfare. Roney Inv. Co. v. City of
Miami Beach, 174 So. 26 (Fla. 1937) . Where the benefit to the
abutter is merely the result of the vacation and not its purpose
and aim, the vacation is not invalid because of such a private
benefit. 11, McQuillan, Municipal Corporations, Section 30. 186a
(1983)
Another factor which must be considered when vacating a street is
whether the City maintains a sewer, water pipes or other public
utilities under the street which is to be vacated. A city may not
legally vacate a street in the interests of the public and at the
same time reserve to itself, contrary to the intendment of the
original dedication, an easement extending throughout the area of
the street for the construction, maintenance and operation of
utilities in, over, or under the street because the City has no
proprietary interest in the street prior to or after the vacation.
11, McQuillan, Municipal Corporations, Section 30. 185c (1983) . Any
attempt to make a reservation of a utility easement a condition of
the vacation in the ordinance or resolution may be considered void.
See: City of Naples v. Miller, 243 So. 2d 608 (Fla. 2nd DCA 1971) .
Conclusion
The City of Miami Beach City Commission may vacate a street, alley
or right-of-way provided that the City Commission determines that
the vacation is in the best interest of the general public welfare.
If the City Commission determines that the sole or primary purpose
of vacating a street, alley or right-of-way is to benefit the
adjoining property owners or that the vacation accommodates the
needs and convenience of private individuals, then the City
Commission does not have the authority to vacate a street, alley
or right-of-way.
Finally, the City Commission must consider the effect of any
vacation of a public street, alley or right-of-way on the City of
Miami Beach' s right to maintain public utilities in, over or under
the street.
Prepared by:
John L. Morrow
Assistant City Attorney
JLM/rlw
4/12/89
REF:8\CAOVACAT.MEM
2
38
OFFICE OF THE CITY ATTORNEY - 1700 CONVENTION CENTER DRIVE -MIAMI BEACH FLORIDA 33139
CITY OF
MIAMI BEACH
(;I I r HAI I I Rh,c t)IJVf IJ I It li:t.1 4i+ti's MIAMI BEACH FLORIDA ORIDA 33139
DEPARTMENT OF Pt)En IC VVONKS
Certified Letter b- 5 75 /33 33 /
Return Receipt Requested
and
Regular U.S. Mail
June 25, 1990
Mr. and Mrs. Marc Cooper
51 East Di Lido Drive
Miami Beach, Florida 33139
Re: Revocation of Revocable Permit
Dear Mr. and Mrs.. Cooper:
Pursuant to a duly noticedpublic hearing •
Meetingof June at the City Commission
• 6, 1990, the City Commission revoked •
which was granted to you on the permit
May 10, 1989.
Under the terms of the revocableerm't, the permittee is required
to remove all p i
encroachments from the demised premises upon p n ten days
notice. Under the terms of the
mailed.
permit, notice is effective when
You are hereby notified thatre required ou are locatedy q fired to remove the fence
and
gate on the demised premises and anyand d all other
improvements placed therein
letter.
within ten days of the date of this
If the fence and other improvements are not •
removed within ten days
of the date of this letter, the City may at its option remove same
at your cost and expense, all in accordance '
with the terms of the
permit.
For your reference, enclosed please find a copy •
. 90-19999, wherein the of Resolution No.
City Commission revoked thep ermit.
Sincerely yours,
•
igAitt
Richard A. Gatti
Public Works Dir for
Encl .
REVOCABLE PERMIT
THIS AGREEMENT, made on this . 40 day of May 1
1989 between the CITY OF MIAMI BEACH, hereinafter called the "City"
and Marc and Ruth Cooper and George and Anne O. Batchelor,
hereinafter called the "Permittee".
WITNESSETH
That the City, for and in consideration of the
restrictions and covenants herein contained, hereby permits the
exclusive use of a City right-of-way easement legally described as
the East-west thirty (30) foot right-of-way between Block 5 and
Block 1, Di Lido Island Subdivision, according to the plat thereof
as recorded in Plat Book 8, Page 36 of the Public Records of Dade
County, Florida, and depicted in Exhibit A attached hereto
("DEMISED PREMISES") for the period of twenty (20) years commencing
on May 26, , 1989.
IT IS FURTHER MUTUALLY UNDERSTOOD AND AGREED BY THE
RESPECTIVE PARTIES HERETO:
That the recitations, statements, covenants, warranties
and agreements hereinabove captioned and set forth hereinabove and
in the attached articles are true and binding upon the respective
parties hereto.
That the City by the grant of this Revocable Permit does
not intend to abandon or vacate the Demised Premises.
ARTICLE I
USE OF DEMISED PREMISES BY PERMITTEE
The Permittee shall use the Demised Premises for the
construction of a fence and gate in the exact configuration as
depicted in Exhibit A, attached hereto and incorporated herein. No
other improvement of any kind shall be made to the demised premises
without the prior written consent of the City Commission.
ARTICLE II
IMPROVEMENTS BY PERMITTEE
The Permittee shall have sole responsibility for
obtaining all regulatory approvals, permits or licenses required
for the placement of such improvements upon the demised premises.
1
All improvements made by Permittee shall be removed from the
premises at the expiration or termination of this permit or if
either property is sold or leased to any party other than the
Permittees. Removal by the City of any improvements made by the
Permittee or portions thereof shall be at the sole expense of the
Permittee and governed by Article XI hereunder.
ARTICLE III
CONDITION OF PREMISES AND MAINTENANCE
The Permittee, at its own expense, shall cause the
Demised Premises to be in a state of good condition from the
commencement of this permit. The Permittee shall maintain and keep
the entire demised premises in a safe, clean condition, free of
grease or refuse and debris. Determination of the condition of
said premises shall be made by the City.
ARTICLE IV
INDEMNIFICATION AND HOLD HARMLESS
The Permittee does hereby agree to indemnify, defend and
save the City harmless from any and all claims, liability, losses,
damages and causes of actions which may arise out of this revocable
permit, or the Permittee's activity on or possession of the Demised
Premises.
ARTICLE V
NO LIABILITY FOR PERSONAL PROPERTY
All personal property placed or moved on the Demised
Premises shall be at the risk of the Permittee or the owner
thereof. The City shall not be liable to the Permittee or owner
for any damage to said personal property.
ARTICLE VI
CITY'S RIGHT OF ENTRY
The City or any of its agents, shall have the right to
enter upon the Demised Premises during all reasonable working hours
for the purpose of inspecting or to gain access to or repair any
utilities located within any City easement or public right-of-way.
Such right of entry shall, likewise, exist for the purpose of
removing structures, improvements, alterations or landscaping which
2
do not conform to this permit. Any removal of the above, or damage
g
to the allowed improvement or landscaping made by the City and
necessitated by the Permittee's use of said premises, shall be at
the sole expense of the Permittee. Further, the City shall not be
responsible for the restoration of the premises, its fixtures,
fences, walls, or landscaping, in the event such are damaged or
removed by the City in order to inspect, repair or gain access to
its utilities located on the land which is the subject of this
revocable permit. Additionally, any expenses incurred by the City,
but not paid by the Permittee, in removing such improvements or
landscaping shall become a lien upon the Permittee's abutting
property, which may be foreclosed within one year of its filing.
ARTICLE VII
REVOCATION OF PERMIT
It is understood and agreed between the parties hereto,
that the City may, upon ten days ' written notice to the Permittee,
cancel or terminate this permit if the City in its sole discretion
needs the property for any reason.
ARTICLE VIII
NOTICES
It is understood and agreed between the parties hereto
that written notice addressed to the Permittee and mailed or hand
delivered to Mr. & Mrs. Marc Cooper, located at 51 East Di Lido
Drive, Miami Beach, Florida 33139 and Mr. & Mrs. Falcon Batchelor,
located at 101 East Di Lido Drive, Miami Beach, Florida 33139 shall
constitute sufficient notice to the Permittee, and written notice
addressed to the City Manager and mailed or delivered to the City
of Miami Beach, 1700 Convention Center Drive, Miami Beach, Florida
33139, shall constitute sufficient notice to the City to comply
with the terms of this Permit. Notice by U.S. Mail shall be deemed
effective when mailed.
ARTICLE IX
ASSIGNMENT
Without the written consent of the City first obtained
in each case, the Permittee shall not sublet, assign, transfer,
3
mortgage, pledge, or dispose of this permit for the term hereof.
ARTICLE X
SURRENDER OF PREMISES
At the expiration of this Permit or cancellation thereof,
Permittee shall, without demand, quietly and peaceably deliver
possession of the Demised Premises free of any walls, fences or
other like fixtures or improvements. The Permittee shall be
responsible for the expenses of putting the premises in said
condition. If said premises are not in such condition, at the
expiration or cancellation of this permit, Permittee hereby agrees
that the City shall have the right to restore the premises to such
condition. The Permittee agrees to reimburse the City for all such
expenses within thirty (30) days of mailing of a statement to the
Permittee at the address indicated in Article IX. If not so paid,
the expenses incurred by the City in so doing shall become a lien
upon the Permittee's abutting property and/or leasehold and may be
foreclosed within one year from the filing of such a lien, or the
City, at its option, may seek such other remedies as may be
allowable by law. Permittee shall pay all of City's costs of
litigation including a reasonable attorney's fee incurred in any
dispute or claim arising out of this Permit if City is the
prevailing party in said dispute, or claim.
PERMITTEE FURTHER STATES THAT HE HAS CAREFULLY
READ THE FOREGOING REVOCABLE PERMIT AND KNOWS
THE CONTENTS THEREOF AND FULLY REALIZES ITS
MEANING AND SIGNS THIS REVOCABLE PERMIT OF HIS
OWN FREE WILL.
IN WITNESS WHEREOF, the parties have hereunto executed
this Revocable Permit for the purposes herein expressed the day
and year first above written.
CITY 0 IAM BEAC-
B ?',A2 1._ L,
� •UD, � 'OR
ATTEST: Liat,:,,AY-- A14,7
City Clerk 1714/0
FORM APPROVED
LEGAL DEPT.
4
By
6;W4.7.4;??..a4,_d
Date 0717
Witness MARC COOPER
Witness RUTH COOPER
SWORN TO AND SUBSCRIBED before me this day of
, 1989.
Notary Public, State of
Florida at Large
My Commission Expires:
Witness GEORGE BATCHELOR
Witness ANNE O. BATCHELOR
SWORN TO AND SUBSCRIBED before me this day of
, 1989.
Notary Public, State of
Florida at Large
My Commission Expires:
REF:REV/COOPER.REV
AMW/JLM/rlw
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RESOLUTION NO. 90-19999
A RESOLUTION OF THE CITY COMMISSION OF THE CITY
OF MIAMI BEACH, FLORIDA, REVOKING REVOCABLE
PERMIT GRANTED TO MARC AND RUTH COOPER AND
GEORGE AND ANNE O. BATCHELOR, REVOKING THE
REVOCABLE PERMIT GRANTED TO LILA G. HEATTER
AND MATTHEW L. LEIBOWITZ AND REQUIRING REMOVAL
OF ANY AND ALL ENCROACHMENTS ON ANY PUBLIC-
RIGHTS-OF WAY ON DI LIDO ISLAND, RIVA ALTO
ISLAND AND SAN MARINO ISLAND.
WHEREAS, the City Commission on May 10, 1989, pursuant to
Resolution No. 89-19603 granted a revocable permit to Marc and
Ruth Cooper and George and Anne 0. Batchelor to construct a fence
across the east-west 30 ' right-of-way between Block 5 and Block 1
of Di Lido Island Subdivision, Plat Book 8, Page 36, all in the
Public Records of Dade County, Florida;
WHEREAS, the City Commission on April 5, 1989, pursuant to
Resolution No. 89-19577, granted a revocable permit to Lila G.
Heatter and Matthew L. Leibowitz to construct a fence across the
north-south 20 ' right-of-way between Block 1 and Block 4 of Rivo
Alto Island subdivision, Plat Book 7, Page 74 , all in the Public
Records of Dade County, Florida; and
WHEREAS, a public hearing was held before the City Commission
on June 6, 1990 for the purpose of considering revocation of the
above referenced revocable permits and for the purpose of requiring
removal of any and all encroachments on any of the public rights-
of-way on Di Lido Island, Rivo Alto Island and San Marino Island.
NOW, THEREFORE, BE IT DULY RESOLVED BY THE CITY COMMISSION OF
THE CITY OF MIAMI BEACH, FLORIDA, as follows:
1) The revocable permit granted to Marc and Ruth Cooper and
George and Anne 0. Batchelor, pursuant to Resolution No.
89-19603 , is hereby revoked for the purposes of opening the
right-of-way within the permitted area to the public in
accordance with the dedication to the City of Miami Beach,
dated June 28, 1939, accepted by the City Council of the City
of Miami Beach on July 5, 1939 and recorded on July 21, 1939
in Deed Book 1987, page 390 of the Public Records of Dade
County, Florida.
1
2) The revocable permit granted to Lila G. Heatter and Matthew
L. Liebowitz, pursuant to Resolution No. 89-19577 , is hereby
revoked for the purposes of opening the right-of-way within
the permitted area to the public in accordance with the
dedication to the City of Miami Beach, dated June 28 , 1939,
accepted by the City Council of the City of Miami Beach on
July 5, 1939 and recorded on July 21, 1939 in Deed Book 1987,
page 390 of the Public Records of Dade County, Florida.
3) The City Manager and the City Attorney are hereby instructed
to take any and all necessary actions to remove any and all
encroachments to any of the public rights-of-way on Di Lido
Island, Rivo Alto Island and San Marino Island.
ADOPTED this 6th day of June 1990.
.7 I(
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VICE-MAYOR '
ATTEST:
c7i/C
FORM APPROVED
CITY CLERK LEGAL DEPT.
PNB: lm By 27.
Date
62.-/96
2 •
REGULAR AGENDA - JUNE 6. 1990
L-3. TIME CERTAIN ITEMS (CONTINUED)
4:30 P.M. PUBLIC HEARING
D. CONSIDERATION OF REVOCATION OF PERMITS AND REMOVAL OF ANY AND ALL ENCROACHMENTS ON ANY OF
THE PUBLIC RIGHTS-OF-WAY ON DILIDO, RIVO ALTO, AND SAN MARINO ISLANDS.
1. NOTICE OF PUBLIC HEARING.
(PUBLIC WORKS DEPARTMENT)
(SCHEDULED 5/9/90)
ACTION: Hearing held and concluded.
Matthew L. Liebowitz presented 25 statements from residents (essentially waterfront property
owners) opposing revocation of the permits; and a Settlement Proposal whereby residents of
the south part of Rivo Alto Island would be given a key for access to the street-end between
8 West Rivo Alto Drive and 11 East Rivo Alto Drive, during daylight hours. (The proposal
apparently was not acceptable to those in favor of revoking the permits. )
Resolution No. 90-19999 adopted, revoking the following revocable permits:
With Marc & Ruth Cooper of 51 East DiLido Drive and
George Falcon & Anne 0. Batchelor of 101 East DiLido Drive,
authorized 5/10/89 by Resolution No. 89-19603
With Mrs. Lila G. Heatter of 11 East Rivo Alto Drive and
Matthew L. Liebowitz of 8 West Rivo Alto Drive,
authorized 4/5/89 by Resolution No. 89-19577
requiring removal of any/all encroachments on any public rights-of-way on DiLido, Rivo Alto,
and San Marino Islands, so they would be made available for purposes of pedestrian access
pursuant to the covenants.
'ACTION SUMMARY (R-3D) JUNE 6, 1990 -9-
9
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1".-14 ::-" t -' '
CITY OF IMAM ACH
it
it
,,,, ,, ,
TO: Richard Gatti
VIA: 6/1/39
VIA: Domingo Rodriguez
FROM: Elaine M. Baker
City Clerk
SUBJECT: A Revocable Permit for the purpose .c)f
construction of a fence and gate in 1
portion of the east-west thirty (30)
foot right-of-way between Block 5 and
Block 1 of Di Lido Island Subdivision.
Enclosed, please find three copies of the
above noted permit for signature by the
appropriate persons in the presence of
witnesses as indicated.
We are requesting that all three copies
be signed and returned to Mercy Williams
in this of f ice.f She will subsequently
furnish you with fully executed copies
along with the authorizing Resolution
No. 89-19603.
Thank you.
8/3/90
The signed agreement of the above have not
been received to this date.
Please follow up.
,. Thank you.
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ORIGINAL
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9 RESOLUTION NO. 89-19603
Of(tio
Authorizing the Mayor and City Clerk to
execute a Revocable Permit for the purpose
of construction of a fence and gate in a
portion of the east-west thirty (30) foot
right-of-way between Block 5 and Block 1
of Di Lido Island Subdivision, according
to the Plat thereof as recorded in Plat
Book 8 page 36 of the public records of
Dade County, Florida.
f "
•