Amendment to GC Golf Course District Regulations r,200a -33�
MIAM BEACH
OFFICE OF THE CITY ATTORNEY
MEMORANDUM
TO: Robert Parcher, City Clerk
FROM: Gary M. Held, First Assistant City Attorney
DATE: August 1, 2011
SUBJECT: Amendment to GC Golf Course District Regulations
This memorandum requests. that you process an amendment to the City Code with the
codifier pursuant to (1) a Court Order in which a portion of a previously adopted ordinance
was declared unconstitutional, and (2) a Settlement Agreement approved by the City
Commission accepting this result.
Pursuant to Ordinance 2002 -3367, the City Commission amended Miami Beach City Code,
Subpart B, the Land Development Regulations, Chapter 142, Zoning Districts and
Regulations, Article II, District Regulations; Division 8, GC Golf Course District. Exhibit
In the case styled La Gorce Country Club, Inc., v. City of Miami Beach, Florida, case no. 03-
12377 CA 30, in the Circuit Court of the Eleventh Judicial Circuit, in and for Miami -Dade
County, Florida, the Court found that the fence and landscaping provisions in section 142 -
395(3) were unconstitutional. A copy of the "Order Finding Ordinance Unconstitutional" is
attached as Exhibit "B." An Order clarifying Exhibit "B," limiting it to the specified
subsection, is attached as Exhibit "C ".
While the City appealed these Orders, a subsequent settlement with La Gorce Country Club
resulted in the Orders becoming final in 2004, recognizing the City would not enforce the
stricken provision. Resolution 2004 -25462 approving the Settlement Agreement, and the
executed Settlement Agreement, are attached as Exhibit "D." Separate litigation and a
recent settlement with neighbors surrounding La Gorce delayed processing.this amendment
until now.
Attached as Exhibit "E" is the amendment to the City Code to be processed. It strikes
subsection 142- 395(3) from the Ordinance. Exhibit "E" also contains signatures of Richard
Lorber, Acting Planning Director, and Jose Smith, City Attorney, confirming this change.
Please let me know if you need anything further. Thank you.
FAATTO\HELG \Ordinances\La Gorce \Ordinance amendment 2011 \Memo to Clerk re amendment.doc
IN THE CIRCUIT COURT OF THE ELEVENTH MICIAL CIRCUIT
-- IN AND FOR MIAMI -DADS COUNTY, FLORIDA
CASE NO. 03 -12377 CA 30
LA GORCE COUNTRY CLUB, INC.,
Plaintiff,
vs.
CITY OF MIANE BEACH FLORIDA, .
a municipal corp6ration,
Defendant.
ORDER FINDING ORDINANCE UNCCNSTIT f,?TIONAL
This ca =!i7e came on to be heard at trial before the court sitting as finder of fact and lair ?,
and the court having heard testimony," having viewed all of the documents and physical evidence,
having hear:, �ra - ument of counsel, having reviewed the trial briefs, motions and case law, :r&,
that Ordinance No. 2002 -3367 is unconstitutional.-
The facts in this case are :as follows. La Gorce Country Club ;hereinafter, the club). is a
private golf and country club in the middle of Miami Beach. It is surrounded by approximately
.1.3 0 single family homes. Only 17 of the homeowners are members of the club.
The area of the club is zoned as GC or "golf course." La Gorce is the only private golf
course in Miami Beach and is the only one so zoned. There are two public courses within the city
which fall under a different zoning classification.
Recently, the club, which is owned in shares by its 300 founding members, decided to.
update its club and golf course facilities. The club applied to the city for some variances for the
j Exhibit «B»
height- of the clubhouse, and floor area- At the time of the club's application, all private property.
owners were permitted to have certain fences.and hedges to enclose their property. A seven foot
fence was permitted across a front yard; a seven foot fence was permitted for a side or rear yard;
a, five foot fence was permitted if the yard abutted a waterway or a golf course. , Hedges of any
height were permitted on any boundary of the property as long as they were - trimmed and
maintained.
The club received approval for many of its variances. At the same time, city staff
inembers recommended that the club be permitted to erect 'a five foot non- opaque fence around its
property.
The City Commission held.a public hearing and was inundated with a group' of
homeowners who vociferously opposed the idea that the club could erect- even a see - through,
fence. (Transcripts of the hearing were admitted into evidence at the trial).
After hearing the arguments of the homeowners, the Commission passed a new of
the ordinance dealing with golf courses in the GC zoning area. (La Gorce being the only golf
course inAhat area) Section 142-395 (3) is as follows:
"Fencing shall be allowed only on the street- ends, or facing a street, or on areas not
abutting single - family homes, however the adjoining property owner may waive this
restriction. The fence height shall be as prescribed in the Code and when located within
the 75 -foot setback,. plant material shall not act as a solid barrier."
The manager of the club testified that it had been the club's intention to enclose the golf
course in some fashion to stop the intrusion of homeowners and others from being a nuisance on
the course. They desired to do this while the course was under renovation in order to avoid
further closing of the course at a later time. The course has been closed to its members while the
lengthy renovation has taken place.
Testimony was presented by the club in the form of photographs, testimony, and reports
concerning the intrusion of unauthorized usage. of the club, and to show the reason that the club
had planned to utilize the fencing ordinance which was in place for all private property owners
prior to the altered ordinance.
The court viewed the following photographs: A bench and a swing set directly on the
boundary of the golf course and in the "line of fire" of golf balls; electric line and lights strung in a
back yard, but actually on the course; a trampoline on the golf course; a slide right on the golfeart
path; a patio erected directly abutting the tenth hole, a dog strolling on the course without leash
or owner, photos of a variety offences erected by homeowners, some in a state of disrepa 'one
partially fallen over; a'small child aiding a bicycle on the golfcart path, a panel truck surrounOed by
trash and garbage at the rear of a house; a backyard pool without water or fencing at a partially
renovated` house ( testimony that this condition had been the same for two years).
Testimony of the club manager as to a number of incidents in the last few years was
elicited: A homeowner who erected a party tent on the golf course for a Christmas party; storage
containers and vans at the club vandalized; golfers attacked by a dog running loose on the course;
children playing on the course during golf hours; a woman found on a Sunday morning stretched
out on the golf course talking on a cell phone.
Additionally, testimony and photos documented the fact that, as part of the renovation, the
club was in the process of building a new lake which will be five to eight feet deep. The Iake
abuts several homes. Without fencing, it may well be a danger to children and pets. The lake was
added to improve drainage which the homeowners testified has been a bone of contention
between them .and the club. The homeowners stated that they believed the club property drained
water onto their properties. The club believes the lake will satisfy this disagreement, but will be a
safety factor without any barrier:
The City's evidence of their reason for prohibiting the club Trom any enclosure was the
following: to preserve an "historical view" of the homeowners; to keep the tax base high; .to
protect "open'space" green space status for the city's obligation to have certain open space acres.
No safety or health issues .were presented by the city.
The city's planning director testified that there were other less restrictive means for the
club to' accomplish its safety concerns. He listed planting a border of low flowers around the
course, digging a. ditch around the course to delineate its boundaries, or vigorous enforcement by
the club.
Homeowners, as interveners, were allowed by the court to present evidence. ,Theyalso.
cit °d that their homes were somehow protected by a "historic view ". They introduced 18 pages
:fry rol the Carl Fisher Collection. written when Miami Beach was first developeil. %,Yithin this-
document was a list of specifications and covenants. It is to these, that the homeo pointed
as a covenant to preserve their unobstructed golf course view. Nothing in the list for the "Golf
Course Subdivision" talked of a preserved view. The term that the interveners pointed to was one
which stated " Residences shall be of a double front type, fronting both the east and the west."
The covenants that were imposed, however, have greatly changed! "Cost of the
residences - $7,500 - Caucasian Race Only; Restrictions not be construed to prevent keeping,
servants for family use." A reading of these covenants gives historic preservation a bad name!
Homeowners also alluded to "encroachment agreements ". None were introduced as
evidence. The only description.'were some kinds of agreements from the 1920's into the 1950's
where .a flower bed or sprinkler head were permitted to encroach over the property line and onto
the course for continuity purposes. Since*no agreement was introduced, the court cannot
speculate whether both sides encroached, or what the intent or language was.
In summary of the facts, the club has safety concerns for itself and its abutting neighbors
if it cannot.enclose itself in the same way its neighbors can. The city's, concern to maintain higher
taxes was mentioned, but there no testimony of any land or real estate expert to say that taxes
would, fall, if the golf course erected some type of fencing, There is no such 'designation of
"historic view ". The Historic Preservation Board considered but rejected historic status for the
club sometime before the passage of this ordinance. The city stated that it might be considering a
new designation of "conservation district ".to preserve open space, but there is no such existing
designation now, nor would - the golf course cease to be considered an-open space for the purpose.,
of keeping housing from covering all of the city, , "T it were to erect fences.:. }
What is clear from an overall view of the filll evidence in this case, is that the club and the
homeowners have been uneasy neighbors. for �a I `g time: The homeowners have small backyards
which many have expanded by use of the, golf course. Had some homeowners confined their
usage of the course to enjoying the view, rather than enjoying the grounds, the club might not be,
seeking some enclosure. The city might never have taken the drastic step that they took in
fashioning the new ordinance, but�for the vociferous cries of their constituents.
The ordinance itself clearly cannot pass constitutional muster. It allows one set of private
property owners to erect fences and shrubs as they choose, while the other property owner can
erect none. The only way that the club can be permitted to erect these enclosures is if the
homeowners permit the club to do so. This would be the only time that permits would be issued
by 130 different private parties, with no continuity and no set of specifications, rather than the
permits being issued by a municipality or other government .under strict specifications and with an
.even hand.
',,Based on all of the above, the ordinance violates the Equal Protection clause of the
Fourteenth Amendment the United States Constitution and Article 1, Section 2 of the Florida
Constitution, "to acquire possess and protect property, ". Equal Protection is not violated merely
because some persons are treated differently than others. Equal Protection does require that
persons similarly situated be treated similarly. Duncan v. Moore, 754 So. 2d 708 (Fla. 2000).
Further, where a distinction results in unequal treatment, it must bear some rational relationship to
a legitimate state purpose.
In this case, the city showed no legitimate governmental interest in prohibiting one
property owner from doing what all the other property owners in the zoning district.. could do: .
Their desire to keep tax collections high could be achieved in various ways unrelated to a : ,.
prohibition on the club's right to protect its property. Further, no concrete evidence that the tax
base would fall v -as introduced. One way to preserve the view of the homeowners and the ragl
of the club to its privacy was to follow a recommendation from its own planners to allow the clue
to build a five foot, see - through fence similar to golf clubs allover South - Florida. A five foot -
wrought.iron fence would allow a view of the course while keeping dogs, children, toys, bikes,
and motorcycles out.
Secondly, the ordinance sanctions the unlawful delegation of the city's duties to regulate
and permit the erection of barrier fences. A municipality may not delegate its duty to the
"unbridled discretion of a single individual." City of Miami Beach v.. Forte Towers, Inc., 305
S6.2d 764 (Fla. 1975); Amara v Town of Daytona Beach, 181 So.2d 722 (Fla. I` DCA 1966).
This ordinance is found to be unconstitutional by this court. "Good fences make good
neighbors." This court hopes that the parties will approach their disagreements with that famous
quote in mind; that the homeowners will realize that they may still preserve their view, and La
Gorce may still preserve its privacy by urging Miami Beach to enact an ordinance which can
constitutionally meet the needs of all sides. The court has no ability to dictate such a resolution;
but hopes that La Gorce will not advocate for the most restrictive enclosure and be satisfied with
a non- opaque fence.
DONE AND ORDERED in chambers at Miami -Dade County, Florida, this 23' day of
July, 2003.
BARBARA S: LEVT_NSON
CIRCUIT. COURT JUDGE
Cc: Gary Held, Esq., First Assistant City Attorney
City of Miami Beach
Joseph H. Serota, Esq.
Bruce Reich, Esq.
IN THE .CIRCUIT COURT OF THE
ELEVENTH JUDICIAL CIRCUIT IN AND
FOR MIAMI -DADE COUNTY, FLORIDA
CASE NO.: 03 -12377 CA 30
LA GORCE COUNTRY CLUB, INC.,
Plaintiff,
V.
CITY OF MIAMI BEACH FLORIDA,
a municipal corporation,
Defendant.
ORDER CLARIFYING JULY 23, 2003 ORDER
F IN TDING ORDINANCE UNCONSTITUTIONAL
THIS CAUSE came on to be heard upon plaintiff, La Gorce Country Club,
Inc.'s unopposed motion for relief from and clarification of the Court's order dated
July 23, 2003, finding City of Miami Beach Ordinance No. 2002 -3367
unconstitutional. The Court having reviewed the motion and the July 23, 2003
order, having noted the lack of, objection from the defendant, and being otherwise
fully advised in the premises, it hereby
ORDER and ADJUDGED:.
1. La Gorce's motion for relief from and clarification of the July 23,
2003 order is hereby GRANTED.
i Exhibit "C"
r
CASE NO.: 03 -12377 CA 30
2. The Court's July 23, 2003 order is hereby amended to find that only
that portion of Ordinance 2002 -3367 relating to fencing and landscaping
restrictions, which portion is codified at section 142 - 39(3) of the City Code, is
unconstitutional. The remainder of Ordinance 2002 -3367 remains in full force and
effect as enacted.
3. In all other respects, the Court's July 23, 2003 order - remains
unaltered, including those portions relating to the Court's reasoning of the
decision.
DONE and ORDERED in chambers in Miami, Miami -Dade County, Florida,
3 I L003
this day of 2003.
CIRCUIT COURT JUDGE
Copies furnished to:
Joseph H. Serota, Esq.
Gary Held, Esq.
Bruce S. Reich, Esq.
John Tober, Esq.
Richard I. Korman, Esq
2
RESOLUTION NO. 2004 -25462
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF
THE CITY OF MIAMI BEACH, FLORIDA, AUTHORIZING THE
MAYOR AND CITY CLERK TO EXECUTE THE ATTACHED
SETTLEMENT AGREEMENT BETWEEN LA GORCE COUNTRY
CLUB, INC., AND THE CITY OF MIAMI BEACH, AND
AUTHORIZING THE CITY MANAGER AND CITY ATTORNEY TO
TAKE SUCH ACTIONS AS MAY BE NECESSARY TO CARRY
OUT THE INTENT HEREOF.
WHEREAS, on May 8, 2002 the City Commission adopted Ordinance
2002 -3367 amending the land development regulations in the GC Golf Course
District, affecting privately -owned golf courses in the City, including La Gorce
Country Club, Inc., ( "La Gorce) and its golf course; and
WHEREAS, La Gorce challenged the fence and landscaping provisions in
Ordinance 2002 -3367, first by Petition for Writ of Certiorari, to the Appellate
Division of the Circuit Court, and then by Complaint in the General Jurisdiction
Division of Miami -Dade County Circuit Court; and
WHEREAS, the Appellate Division denied La Gorce's Petition, which
decision has recently been upheld by the Third District Court of Appeal; however,
the trial court in the General Jurisdiction Division after a two -day trial declared the
fence and landscaping provisions of Ordinance 2002 -3367 unconstitutional,
based on the Florida and U.S. constitutions; and
WHEREAS, the trial court also ruled that La Gorce is entitled to an award
of attorney's fees and costs, in an amount to be determined, under 42 U.S.C.
section 1988, which awards attorneys' fees to successful plaintiffs under 42
U.S.C. section 1983, which was included among the claims filed by La Gorce;
and
WHEREAS, while the City Attorney has appealed the trial court's
declaration of unconstitutionality, and is confident that such decision, along with
the award of attorneys' fees may be overturned, the result of continued litigation
and appeals is never certain, and settlement will hopefully put to rest this
acrimonious dispute in a more favorable way; and
WHEREAS, La Gorce has agreed to seek a permit for a four foot high
fence, and when installing and maintaining hedges and other landscaping,
excluding trees, provide a view of the golf course from abutting residential
properties, and has further agreed that upon issuance of such permit to waive its
claims for attorneys' fees and costs, and any other damages arising out of this
matter; and
I
Exhibit "D"
i
1
WHEREAS, since the primary purposes of the challenged fence and
landscaping provisions in the ordinance were to protect the views of the
homeowners surrounding the golf course, as well as protect property values and
the character of the neighborhood, this settlement agreement seeks to
accomplish the purposes initially sought, while protecting the City from current
claims of liability and further possible adverse decisions in this matter.
NOW, THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND
CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, that the
Mayor and City Clerk are hereby authorized to execute the attached settlement
agreement with La Gorce Country Club, Inc and .the City Manager and City
Attorney are authorized to take such further actions as may be necessary to
accomplish the intent hereof.
PASSED and ADOPTED this 14th da of J uar , 2004.
ATTEST:
MAYOR
CITY CLERK
APPROVED AS TO
FORM AND LANGUAGE
& FOR EXECUTION
City Attorney Date
F:\atto1HELG\Reso1utions\La Gorce Settlement Agreement res.doc
� 2
OFFICE OF THE CITY ATTORNEY
64 el e VA
F L O R I D A
MURRAY H. DUBBIN * ""`°" t
; y Telephone: (305) 673 -7470
City Attorney °phi Telecopy: (305) 673 -7002
COMMISSION MEMORANDUM
TO: Mayor David Dermer Date: January 14, 2004
Members of the City Commission
Jorge M. Gonzalez, City Manager
FROM: Murray H. Dubbin, City Attorney
SUBJECT: RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY
OF MIAMI. BEACH, FLORIDA, AUTHORIZING THE MAYOR AND CITY
CLERK TO EXECUTE THE ATTACHED SETTLEMENT AGREEMENT
BETWEEN LA GORCE COUNTRY CLUB, INC., ,AND THE CITY OF
MIAMI BEACH, AND AUTHORIZING THE CITY MANAGER AND CITY
ATTORNEY TO TAKE SUCH ACTIONS AS MAY BE NECESSARY TO
CARRY OUT THE INTENT HEREOF.
RECOMMENDATION
Adopt the-resolution approving the referenced Settlement Agreement between La Gorce
Country Club, Inc. and the City of Miami Beach, Florida.
ANALYSIS
La Gorce Country Club challenged the City's fence and landscaping provisions in
Ordinance 2002 -3367, first by Petition for Writ of Certiorari, to the Appellate Division of
Circuit Court, then by Complaint in the General Jurisdiction Division of Miami -Dade
County Circuit Court. The Appellate Division denied La Gorce's Petition, which decision
has recently been upheld by the Third District Court of Appeal, however, the trial court
in the General Jurisdiction Division after a two -day trial declared. the fence and
landscaping provisions of Ordinance 2002 -3367 unconstitutional, based on the Florida
and U.S. constitutions. The trial court also ruled that La Gorce is entitled to an award of
attorney's fees and costs, in an amount to be determined, under 42 U.S.C. section
1988, which awards attorneys' fees to successful plaintiffs under 42 U.S.C. section
1983, which was included among the claims filed by La Gorce.
La Gorce has offered, among other things, to seek a permit for a four foot high fence,
and when installing and maintaining hedges and other landscaping, excluding trees,
provide a view of the golf course from abutting residential properties.
Agenda Item ' R 7 G
1700 Convention Center Drive -- Fourth Floor -- Miami Beacl Date
City Commission Memorandum
January 14, 2004
Re: Settlement Agreement Between La Gorce Country Club, Inc. and The City of Miami Beach
Page: Page 2' of 2
If the fence permit is granted La Gorce agrees to waive its claim for attorney's fees and
costs, and any other damages arising out of this matter.
Since the primary purposes of the challenged fence and landscaping provisions in the
ordinance were to protect the views of the homeowners surrounding the golf course, as
well as protect property values and the character of the neighborhood, this settlement
agreement, if fully performed, seeks to accomplish the purposes initially sought, while
protecting the City from present economic claims and further possible adverse decisions
in this matter.
NMD1GMH
F :\atto\$ALLISHEILA\RESO- ORD.CM\ aGorceCountryClub v CMB.CM -1
OFFICE OF THE CITY ATTORNEY - 1700 CONVENTION CENTER DRIVE - MIAMI BEACH, FLORIDA 33139
SETTLEMENT AGREEMENT
BETWEEN,
LA GORCE COUNTRY CLUB, INC.
AND
THE CITY OF MIAMI BEACH
This Agreement is entered into, by and between La Gorce Country Club, Inc. ( "La
Gorce ") and the City of Miami Beach; Florida ( "City "), this I day of January, 2004.
WHEREAS, La Gorce has instituted a lawsuit against the* City styled La Gorce- Country
Club, Inc. v. City of Miami Beach, Florida, Case No. 03 12377 CA 30 ( "Lawsuit "), in which La
Gorce alleges that the fencing and landscaping restrictions 'contained in City Ordinance No.
2002- 3367, now codified at section 142- 395(3) of the City Code ( "Restrictions "), are
unconstitutional; and
WHEREAS, the trial court on September 10, 2003, entered final judgment in favor of La
Gorce and against the City in connection with the Lawsuit, finding the Restrictions to� be
unconstitutional ( "Final Judgment"); and _
WHEREAS, the. trial court has also entered an order awarding entitlement to attorney's
fees and costs to La Gorce in an amount to be determined at a subsequent evidentiary hearing
("Fe Order"); and
WHEREAS, La Gorce has petitioned the trial court for an 'award of attorney's fees
totaling $123,906.50 and costs totaling $4,395.19; and
WHEREAS, the City has appealed the Final Judgment to the Third District Court of
Appeal in City of Miami Beach, Florida v. La Gorce 'Country Flub, Inc., Case No, 3D03 -2442
("Appeal"); and
WHEREAS, La Gorce has also filed two Petitions for Writs of Certiorari from the
Restrictions, in La Gorce Country Club, Inc., v. City of Miami Beach, Florida,, Case No. 02 -210
AP, Appellate Division of the Circuit Court, and Case No. 3D03 -1314; Third District Court of
Appeal ( "Certiorari cases "); and
WHEREAS, in both Certiorari cases, the Courts have denied La Gorce's Petitions; and
WHEREAS, both parties desire to resolve both the Lawsuit and the Appeal without the
need for incurring additional liability and /or litigation expense;
Exhibit "1"
NOW, THEREFORE, in consideration of the promises exchanged herein and other
valuable consideration the receipt and sufficiency of which are hereby acknowledged, the parties
agree as follows:
1 The foregoing recitations are incorporated herein by reference and are
acknowledged to be true and correct.
2. The parties will submit a joint motion to stay.the Appeal, to relinquish jurisdiction
to the trial court, and, to temporarily suspend the automatic stay imposed as a result of the
Appeal, in order for the parties to implement this settlement agreement. Moreover, the parties
will submit a joint motion to the trial court to stay the determination of the amount of fees and
costs to be'awarded to La Gorce.
3. La Gorce will submit an application for a permit to construct a four -foot high,
metal picket or similar type fence ( "Fence ") on, along or within its property line bordering the
La Gorce golf course ( "Permit Application "), which application the City will expeditiously and
m good faith process and evaluate under the City Code provisions as they existed immediately'
preceding the enactment of ' the Restrictions (attached hereto as Exhibit "A "), as if the
Restrictions had never been enacted. The City will grant or deny the Permit Application no later
than thirty (34) days from submittal of a complete application. If the parties are unable to reach
an agreement as to the design of the Fence, the parties agree that the design of the fence
currently in place along the southern boundary of the La Gorce golf course (along 51st Terrace)
is acceptable. La Gorce and the City may modify the nature of the Fence to the ektent such
modification is consistent with applicable City regulations. La Gorce will prospectively when
installing and maintaining hedges and other landscaping, excluding trees, provide a view of the
golf course from abutting residential properties.
4. The City will evaluate the Permit Application solely under the criteria as
described in paragraph 3, above, and other applicable review criteria, but will be under no
obligation to approve the Permit Application if the criteria have not been met. In the event the
City denies the Permit Application for any reason, . La Gorce retains - the right, in its sole
discretion, to withdraw the Permit Application, in which case this Agreement terminates
immediately and neither party shall have further obligations to the other hereunder.
5. If, and only if, the Permit Application is granted by the City, then the parties
further agree as follows:
a. La Gorce will waive any entitlement to attorney's fees and costs, and any
other damages,or claims, in connection with the Lawsuit, including, but not
limited to, any claims. as to the validity or, constitutionality of this
Agreement, and will release the City from any such obligation and claims.
b. The City. will dismiss the Appeal with prejudice and refrain from further
challenging the efficacy of the Final Judgment. The parties will bear their
own costs and attorney's fees incurred in connection with the Lawsuit and
the Appeal.
2
r�
c. La Gorce will have a continuing vested right to construct and relocate the
Fence within its property, and a responsibility to maintain, repair or replace
the Fence as the need arises, subject solely to compliance with the City
Code provisions under which the Permit Application was originally
evaluated and approved and this Agreement.
d. In the event the issuance of the Permit is challenged or .appealed .the City
agrees to defend in good faith the propriety of the issuance of the Permit,
and La Gorce agrees to join in such defense.
e. The City acknowledges that La Gorce has expended and will continue to
expend considerable financial. resources in constructing, maintaining,
repairing and possibly replacing the Fence, as, well as making improvements
based upon the existence of the Fence. As a result, the City recognizes that
La Gorce could not recoup its investment associated with the Fence in less
than 25 years from the date of this Agreement. In the event any provision o
this subparagraph should be determined to be unenforceable by a court of
competent jurisdiction, such provision shall be severed from the Agreement
and all, remaining provisions shall remain in effect and 'enforceable as
between the parties. ° a
f Notwithstanding any other provision of this Agreement, nothing herein` shall,
be construed as intending to confer any rights or benefits on third parties.
6. The parties will submit a joint motion asking the trial court to retain jurisdiction
over the Lawsuit for purposes of enforcing the terms of this Agreement.
T. In the event it becomes necessary for either party to seek enforcement of this .
Agreement, the prevailing party shall be entitled to recover its reasonable attorney's fees and
costs incurred in connection with the enforcement efforts.
8. The parties acknowledge that they have both actively and equally participated in
the drafting and execution of this Agreement, and have had ample opportunity to .discuss and
evaluate the same with legal counsel..
9. This Agreement constitutes the entirety of the understanding between the parties
with respect to the matters referenced herein and supersedes any prior understanding or
agreement which may have existed, -whether verbal or in writing. The Agreement may not be
amended except upon the written consent and agreement of both parties.
10. Each party represents that the persons signing this Agreement on.its behalf are
duly authorized to enter into this Agreement.
3 ,
)7
CITY OF MI, MI BEACH, FLORID LA GORCE COUNTRY CLU , INC.
B
Mayor David Dermer o.berto Sanchez, P sident
r � r ,/
Attest: �� � ���- � �-'�- hest:
City Clerk Secretary
Dated: Dated:
APPROVED AS TO FORM AND CORPORATE
LANCUAGE AND FOR EXECUTION: SEAL
City A o ge Coun el f r La Gorce Country Club, Inc.
F:l atto`. HELGI LITIGA T 11LaGorcc\Settlement\Settlement Agreement for Commission I20303.doc
Chapter 142 ZONING DISTRICTS AND REGULATIONS
ARTICLE IV. SUPPLEMENTARY DISTRICT REGULATIONS
DIVISION 4. SUPPLEMENTARY YARD REGULATIONS
See. 1424132. Allowable encroachments within required yards.
(h) Fences, walls, and gates. Regulations pertaining to materials and heights for fences, walls
and gates are as follows:
(1) All districts except I -1:
a. Within the required front yard, fences, walls and gates shall not exceed
five feet measured from grade. The height may be increased up to a maximum total Height of
seven feet if the fence, wall or gate is set back from -the front property line. Height may be
increased one foot for every two feet of setback.
b. Within the required rear or side yard, fences, walls and gates shall not
exceed seven feet measured from grade, except. when such yard abuts a public right-of-way,
waterway or golf course, the maximum height shall not exceed five feet.
C. All surfaces of masonry walls and wood fences shall be finished in the
same manner with the same materials on both.sides to have an equal or better quality appearance
when seen from adjoining properties. The structural supports for wood fences, walls or gates
shall face inward toward the property.
d. Chainlink fences are prohibited in the required front yard, and any required
yard facing a public right -of -way or waterway (except side yards facing on the terminus of a dead
end street in single - family districts) except as provided in this section and in section 142 -1134.
e. Chainlink fences may be erected to surround vacant lots or vacant
buildings to minimize the possibility of the property becoming a dumping area. Such fence shall
be permitted on a temporary basis for a period not to exceed one year and subject to its removal
prior to the issuance of a certificate of use or a certificate of occupancy for a main permitted use
on the property. In the architectural district, such a fence shall be vinyl coated.
f. Barbed wire or materials of similar character shall be prohibited.
g. Vacant lots in the CD -1, CD -2, CD -3, C -PS 1, C -PS2, C -PS3, C -PS4,
RM -1, RM -2, RM -3, R -PSI, R -PS2, R -PS3, R -PS4, RM -PS1, and MXE districts must be
secured against motor vehicle entry at all entry points by a chain, hedge, fence, or other such
material approved by the planning and zoning director.
(2) In I -1 light industrial districts, within the front, rear or side yard a fence shall not
exceed seven feet, excluding barbed wire or materials of similar character. Barbed wire or
materials of similar character shall be elevated seven feet above grade and be angled towards the
interior of the lot. The combined height of a wall or fence plus barbed wire'or materials of similar
character shall not exceed nine feet. Vacant lots in the 1 -1 district must be secured against motor
EXHIBIT ``A"
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vehicle entry at all entry points by a chain, hedge, fence or, other such material approved by the
planning and zoning director.
(3) For government facilities in GU and CCC districts, a fence surrounding the
property may be located on the property line, not to .exceed six feet in height. The height may be
increased up to a maximum total height of eight feet if the fence is set back one foot from the
property line, subject to design review approval; fence(s) shall be constructed in a manner such
that there is substantial visibility through the fence.
(i) Hedges. 'In all districts, there is no height limitations. Hedge material must be kept neat,
evenly trimmed and properly maintained. For comer visibility regulations see section 142 -1135.
Cross references: Maximum height of hedges in required front yard, § 126- 6(1)b.
F:latto\FiELG\Fences\Chapter 142 supplementary district regs fences hcdges.wpd
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AMENDMENT TO CONFORM CODE TO COURT ORDER IN
LA GORCE COUNTY CLUB, INC., v. CITY OF MIAMI BEACH, FLORIDA,
CASE NO. 03 -12377 CA 30, IN THE CIRCUIT COURT
OF THE ELEVENTH JUDICIAL CIRCUIT,
IN AND FOR MIAMI -DADE COUNTY, FLORIDA
MIAMI BEACH CITY CODE
SUBPART B – LAND DEVELOPMENT REGULATIONS
CHAPTER 142- ZONING DISTRICTS AND REGULATIONS
ARTICLE II- DISTRICT REGULATIONS
DIVISION 8- GC GOLF COURSE DISTRICT
Sec. 142 -391. - Purpose.
Sec. 142 -392. - Main permitted uses.
Sec. 142 -393. Conditional uses.
Sec. 142 -394. - Accessory uses.
Sec. 142 -395. - Development regulations.
Sec. 142 -396. - Setback requirements.
Sec. 142 -397. - Noise regulations.
Secs. 142 -398 -142 -420. - Reserved.
Sec. 142 -391. - Purpose.
The GC golf course district is designed to accommodate golf courses on private property.
(Ord. No. 89 -2665, § 6- 11(A)(1), eff. 10 -1 -89)
Sec. 142 -392. - Main permitted uses.
The main permitted uses in the GC golf course district are golf courses, tennis courts,
clubhouses, and those uses normally associated with a golf course, provided that all such uses are
under a unified ownership and operation.
For purposes of this section, clubhouse shall mean one or more buildings owned and operated by
a private golf club that house administrative offices, fitness rooms, locker rooms, lounges,
restaurants, banquet facilities, pro shops and /or other facilities designed for the use of the club's j
members and their guests. A clubhouse building shall be utilized primarily for the benefit of the
private golf club's members and its facilities shall not be rented, leased or made available to the
general public.
(Ord. No. 89 -2665, § 6- 11(A)(2), eff. 10 -1 -89; Ord. No. 2002 - 3367,§1, 5 -8 -02)
Sec. 142 -393. - Conditional uses.
There are no conditional uses in the GC golf course district.
(Ord. No. 89 -2665, § 6-1](A)(3), eff. 10 -1 -89)
I Exhibit "E"
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Sec. 142 -394. Accessory uses.
The accessory uses in the GC golf course district are as required in article IV, division 2 of this
chapter.
(Ord. No. 89 -2665, § 6- 11(A)(4), eff. 10 -1 -89)
Sec. 142 -395. - Development regulations.
There are no floor area ratio, lot area, lot width, unit area or unit size requirements in the GC
zoning district. Building height, story, and total construction requirements are as follows:
(1) Maximum building height is 42 feet, except that 1400 square feet of the footprint of the
clubhouse may exceed 42 feet up to 50 feet with the location of the added height to be generally
at the center of the clubhouse, inclusive of all allowed extensions, parapets and similar design
elements.
(2) Maximum total construction: 100,000 square feet.
(3) Feneing shall be allowed only on the st+eet ends, oF facing a- street, of on afeas not abtAting
r4e family homes, however- the adjoi
fenee height shall be as pr-eser-ibed in the Code and when leeated within t4e 75 feet setbaek-,
(Ord. No. 89 -2665, § 6- 11(B), eff. 10 -1 -89; Ord. No. 97- 3097,2 , 10 -8 -97; Ord. No. 98 -3107,
§ 1, 1- 21 -98; Ord. No. 2002 - 3367,E , 5 -8 -02)
Sec. 142 -396. - Setback requirements.
The setback requirements in the GC golf course district are as follows:
(1) Any yard adjacent to Alton Road 200 feet, except for at -grade parking lots and other one -
story ancillary structures not to exceed 20 feet in height and 2,000 square feet in floor area. The
foregoing ancillary structures shall be setback at least 125 feet.
(2) Yards abutting single family homes: 75 feet from the property line of any single - family
residence abutting the golf course property. The setback on the golf course adjacent to 51
Terrace and homes whose side property line abuts the golf course shall be 87.5 feet. There shall
be no structures, including restroom facilities or rest stations, new parking lots or roads,
excluding golf cart paths and existing maintenance roads, within this setback area, except that the
existing comfort station within this buffer zone may remain and may be reconstructed, repaired
and /or rehabilitated. Any new structures that may be proposed in the future, including but not
limited to, restroom facilities or comfort stations shall be setback 75 feet from the rear yards of
residential homes abutting the golf course property and shall not exceed 2,000 square feet.
All other yards: The setback shall be 170 feet from the property line of any abutting single
family home. Any and all storage facilities, dumping sites, waste service facility and fuel storage
tanks shall be located at a site within the principal maintenance area, or another site central to the
golf course, screened from surrounding residential properties, in a location and manner to be
reviewed and approved through the design review process.
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(3) Existing at -grade parking lots: 50 feet from the rear lot line and ten feet from the side lot line
of any abutting single family home, except that parking lots existing as of the effective date of
Ord. No. 2002 -3367, shall be set back ten feet from public rights -of -way and from adjacent
properties. The design of the parking lot shall be reviewed in accordance with the regulations set
forth in sections 13 0 -61 -13 0 -67.
(4) Garbage, trash and vegetative debris pick up shall occur between the hours of 7:00 a.m. and
7:00 p.m., seven days a week from the main access point on Alton Road. All other access points
shall be restricted to pick up between 9:00 a.m. and 5:00 p.m. Monday through Saturday only.
(Ord. No. 89 -2665, § 6- 11(C), eff. 10 -1 -89; Ord. No. 2002 -3367, § 3, 5 -8 -02)
Sec. 142 -397. - Noise regulations.
At all times, all noise emanating from the clubhouse or accessory structures that is unreasonably
loud shall be contained within the property lines of the golf course property. An unreasonably
loud noise is defined as a noise that is plainly audible and which interferes with normal
conversation.
(Ord. No. 2002 -3367, § 3, 5 -8 -02)
Editor's note—
Ord. No. 2002 - 3367, § 3, adopted May 8, 2002, enacted provisions intended for use as § 142-
396.1. To preserve the style of this Code, and at the discretion of the editor, said provisions have
been redesignated as-§ 142 -397
Secs. 142 - 398 - 142 -420. - Reserved.
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VERIFIED BY:
r. :
ichard G. Lorber, AICP
Acting Planning Director
APPROVED AS TO
FORM AND LANGUAGE
EXECUT N
f .
;A ey Date
COW
Str4kethfou denotes deleted kmgtiage.
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