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LTC 111-2002 CITY OF MIAMI BEACH Office of the City Manager Letter to Commission No. ///2t7tZ- ~ To: Mayor David Dermer and Members of the City Commission From: Jorge M. Gonzalez ~~ City Manager d , Murray H. Dubbin 1M . A. ~j ,MI ~ City Attorney dVl '4'llJVrvv Date: May 8, 2002 Subject: MIAMI-DADE COUNTY V. OMNIPOINT HOLDINGS. INC. Commissioner Smith has requested that the Administration and City Attorney's Office provide an explanation of the subject decision (copy attached, referred to as "Opinion") and its implications for Miami Beach. On March 6, 2002 the Third District Court of Appeal (the intermediate appellate court with jurisdiction over Miami-Dade County) decided the referenced case, declaring unconstitutional a portion of the County zoning ordinance, and unsettling zoning law within the jurisdictional reach of the court. The case involved a request for an "unusual use, a non-use variance, and a modification of a condition attached to an earlier resolution" to permit construction of a telecommunications tower in west Miami-Dade. The tower required a variance to allow its proposed height of 148 feet. The Community Council Zoning Board denied the approval, which was appealed to and reversed by the Circuit Court Appellate Division. The County appealed to the Third District Court of Appeal ("Third District"). Following the decision of the Third District, the County first moved for a rehearing, and then withdrew that motion and has since filed a petition for review by the Florida Supreme Court. The Third District opinion expressed concern with "the ability of the [Zoning] Board to deny arbitrarily the provision of wireless services, which ability stems from the County's zoning code sections which contain the criteria for the grant or denial of unusual uses, non- use variances, and modifications of conditions." Opinion at p. 4. The applicable County code section establishing the criteria for approval, which the Court declared unconstitutional, provided as follows: May 8, 2002 Letter to Commission Miami-Dade County v. Omnipoint Holdings, Inc. Page 2 of 3 (3) Special exceptions, unusual and new uses. Hear application for and grant or deny special exceptions; that is, those exceptions permitted by the regulations only upon approval after public hearing, new uses and unusual uses which by the reguiations are only permitted upon approval after public hearing; provided the applied for exception or use, including exception for site or plot plan approval, in the opinion of the Community Zoning Appeals Board, would not have an unfavorable effect on the economy of Miami-Dade County, Florida, would not generate or result in excessive noise or traffic, cause undue or excessive burden on public facilities, including water, sewer, solid waste disposal, recreation, transportation, streets, roads, highways or other such facilities which have been constructed or which are planned and budgeted for construction, are accessible by private or public roads, streets or highways, tend to create a fire or other equally or greater dangerous hazards, or provoke excessive overcrowding or concentration of people or population, when considering the necessity for and reasonableness of such applied for exception or use in relation to the present and future development of the area concerned and the compatibility of the applied for exception or use with such area and its development. (emphasis added). The Third District stated that: 'This language is legally deficient because it lacks objective criteria for the County's zoning boards to use in their decision making process." Opinion at p. 5. The Court relied upon decisions interpreting First Amendment guarantees in an adult entertainment context, but stated "[c]onsistently Florida courts have declared unconstitutional ordinances that lack objective standards to guide zoning and other quasi-judicial boards in making their decisions." .!.!:L. The Third District then declared the above quoted section unconstitutional because it "does not provide definite, objective criteria to guide the County's zoning boards in making their decisions." Opinion at p. 6. The question for Miami Beach is whether its Land Development Regulations provide sufficient objective criteria for approval of similar types of uses, and other related approvals. The "conditional use" approvals by the Planning Board are the most similar to May 8,2002 Letter to Commission Miami-Dade County v. Omnipoint Holdings, Inc. Page 3 of 3 that of the "unusual use" considered in the Omnipoint decision. The criteria contained in the City's Land Development Regulations for conditional use approval are found in Section 118-192: Sec. 118-192. Review guidelines. Conditional uses may be approved in accordance with the procedures and standards of this article, provided that: (1) The use is consistent with the comprehensive plan or neighborhood plan if one exists for the area in which the property is located. (2) The intended use or construction will not result in an impact that will exceed the thresholds for the levels of service as set forth in the comprehensive plan. (3) Structures and uses associated with the request are consistent with these land development regulations. (4) The public health, safety, morals, and general welfare will not be adversely affected. (5) Adequate off-street parking facilities will be provided. (6) Necessary safeguards will be provided for the protection of surrounding property, persons, and neighborhood values. (7) The concentration of similar types of uses will not create a negative impact on the surrounding neighborhood. Geographic concentration of similar types of conditional uses should be discouraged. (Ord. No. 89-2665, ~ 17-4(8), eff.10-1-89: Ord. No. 99-3179, ~ 1,3-17-99) (emphasis added). We find the above criteria in the City's code for conditional use approval sufficiently definite and objective to defend against an attack similar to the one observed in the Omnipoint decision. Therefore, it is recommended that no action as a result of this decision be taken at this time. JMG\MHD\&Ab~1 F:\A TTO\HELG\BOARDS\CityComm\Omnipoint-commission.mem.rev.doc 2002 WL 341654 --- So.2d ----, 27 Fla. L. Weeldy D516 (Publication page references are not available for this document.) District Court of Appeal of Florida, Third District. MIAMI-DADE COUNTY, Petitioner, v. OMNIPOINT HOLDINGS, INC., Respondent. No.3DOl-2347. March 6, 2002. County sought petition for writ of certiorari to quash decision of the Circuit Court, Dade County, Amy Steele Donner, Gisela Cardonne, Manuel A. Crespo, JJ., directing county's community zoning appeals board to grant applicant permission to erect telecommunications monopole. The District Court of Appeal, Fletcher, J., held that; (1) county code section setting forth criteria which must be met for approval of application of unusual uses was unconstitutional, and (2) petition for writ of certiorari was denied. Petition denied. West Headnotes [I) Zoning and Planning ~86 414k86 [I) Zoning and Planning ~87 414k87 County zoning code section setting forth criteria for grant or denial of application of unusual uses, non-use variances, and modifications of conditions, including telecommunications monopole, was unconstitutional; section which contained list of uses which conditioned on approval after public hearing did not provide definite, objective criteria to guide county's zoning boards in making decisions to grant or deny applications, and thus, board could arbitrarily deny provision of wireless services. (2) Zoning and Planning ~86 414k86 [2] Zoning and Planning ~87 414k87 Ordinarily when zoning code standards for special exceptions, unusual uses, new uses, and conditional uses are declared invalid, the opportunity to obtain exception or other use is lost. Page 1 [3] Zoning and Planning ~14 414kl4 [3] Zoning and Planning ~384.1 414k384.1 County's petition for writ of certiorari to quash decision of trial court directing county's community zoning appeals board to grant applicant permission to erect telecommunications monopole was denied; board's denial of applicant's request for unusual use was in zoning district in which use was permitted after public hearing, and county's unconstitutional hearing criteria had effect of prohibiting provision of personal wire services in violation of the Telecommunications Act. Communications Act of 1934, 9 332(c)(7)(B)(i)(II), as amended, 47 U.S.C.A. 9332(c)(7)(B)(i)(II). Robert A. Ginsburg, County Attorney, Jay W. Williams, Assistant County Attorney, for petitioner. Hayes & Martohue and Deborah L. Martohue (St.Petersburg), for respondent. Before JORGENSON, GODERICH, and FLETCHER, JJ. FLETCHER, Judge. Miami-Dade County seeks a writ of certiorari quashing a circuit court decision which directs the County's Community Zoning Appeals Board 12 [Board] to grant the application of Omnipoint Holdings, Inc. [Omnipoint] for an unusual use, a non- use variance, and a modification of a condition attached to an earlier resolution. This grant would result in permission for Omnipoint to erect a telecommunications monopole with a height of 148 feet. The circuit court's decision ordering the Board to approve Omnipoint's application has two separate bases; (1) that the record before the Board reflects a lack of substantial competent evidence supporting the Board's denial of the application, and (2) that the Board's decision is in violation of section 332(c)(7)(B)(i)(I) of the Federal Telecommunications Act, 47 U.S.C. 9 332 (1996) [Fed. Act]. Our decision turns only on section 332(c)(7)(B)(i)(II) rather than (I). [FNl] [1] The Fed. Act states in pertinent part: "(i) The regulation of the placement, construction, Copr. C1:l West 2002 No Claim to Orig. U.S. Govt. Works 2002 WL 341654 (publication page references are not available for this document.) Page 2 and modification of personal wireless service facilities by any state or local government or instrumentality thereof. (I) shall not unreasonably discriminate among providers of functionally equivalent services; and (II) shall not prohibit or have the effect of prohibiting the provision of personal wireless services. " Our first concern is what we conclude to be the ability of the Board to deny arbitrarily the provision of wireless services, (FN2] which ability stems from the County's zoning code sections which contain the criteria for the grant or denial of unusual uses, non-use variances, and modifications of conditions. Our discussion starts with unusual uses, which are established by section 33- 13(e), Miami-Dade County Code. This section contains a lengthy list of uses which are conditioned on approval after public hearing. Among those uses is the requested monopole. The code section which purports to create the criteria which must be met for approval of unusual uses is section 33-311(A)(3), which provides in pertinent part:' "Special exceptions, unusual and new uses. [The county zoning boards have authority to] [h ]ear application for and grant or deny special exceptions; that is, those exceptions permitted by the regulations only upon approval after public hearing, new uses and unusual uses which by the regulations are only permitted upon approval after public hearing, provided the applied for exception or use, including exception for site or plot plan approval, in the opinion of the Community Zoning Appeals Board, would not have an unfavorable effect on the economy of Miami Dade County, Florida, would not generate or result in excessive noise or traffic, cause undue or excessive burden on public facilities, including water, sewer, solid waste disposal, recreation, transportation, streets, roads, highways or other such facilities which have been constructed or which are planned and budgeted for construction, are accessible by private or public roads, streets or highways, tend to create a fire or other equally or greater dangerous hazards, or provoke excessive overcrowding or concentration of people or population, when considering the necessity for and reasonableness of such applied for exception or use in relation to the present and future development of the area concerned and the compatibility of the applied for exception or use with such area and its development. " This language is legally deficient because it lacks objective criteria for the County's zoning boards to use in their decision making process. As stated in University Books & Videos, Inc. v. Miami-Dade County, Fla., 132 F.Supp.2d 1008, 1017 (S.D.Fla.2001), in relation to this exact code section: "First, the public hearing requirement grants too much discretion to the CZAB. The procedure for public hearings ... allows the CZAB to accept or reject an application based on vague and subjective criteria.... The standards for granting or denying an application are not precise or objective. Indeed, they are almost entirely subjective. This is improper. See Lady J Lingerie, 176 F.3d at 1362. (FN3]" The court also noted that: "Considerations of the public interest or incompatibility with surrounding land area are precisely the subjective and vague criteria that were rejected in Lady J Lingerie." The referenced Lady J Lingerie court dealt with provisions of the Jacksonville Zoning Code, (FN4] which provisions are similar to those of section 33-311(A)(3), Miami-Dade County Code. As to the similar Jacksonville code language the Lady J. Lingerie court stated (at 1361): "None of the nine criteria is precise and objective. All of them- individually and collectively- empower the zoning board to covertly discriminate against adult entertainment establishments under the guise of general 'compatibility' or 'environmental' considerations." We recognize, of course, that Lady J Lingerie and University Books & Videos dealt with First Amendment issues surrounding adult bookstores and entertainment centers. The Lady J. Lingerie court, concentrating on such rights, stated en passant that Jacksonville was free to use its vague zoning criteria for other types of applications. As the federal court did not have that issue before it, the connnent was gratuitous. It is also out of sync with Florida law. Consistently Florida courts have declared unconstitutional ordinances that lack objective standards to guide zoning and other quasi- judicial boards in making their decisions. [FN5] See North Bay Village v. Blackwell, 88 So.2d 524 (Fla.1956); Drexel v. City of Miami Beach, 64 So.2d 317 (Fla.1953); City of Miami v. Save Brickell Avenue, 426 So.2d 1100 (Fla. 3d DCA 1983); Pinellas County v. Jasmine Plaza, Inc., 334 So.2d 639 (Fla. 2d DCA 1976). Thus as section 33-311(A)(3) of the county code does not provide definite, objective criteria to guide the County's zoning boards in making their Copr. @ West 2002 No Claim to Orig. U.S. Govt. Works 2002 WL 341654 (Publication page references are not available for this document.) decisions, it is unconstitutional. [FN6] In relation to Omnipoint's request for modification of a condition contained in an earlier zoning resolution, it is section 33-31l(A)(7), Miami-Dade County Code that governs. [FN7] It reads: "[The county zoning boards have authority to] [blear applications to modify or eliminate any condition or part thereof which has been imposed by any fmal decision adopted by resolution, and to modify or eliminate any provisions of restrictive covenants, or parts thereof, accepted at public hearing, except as otherwise provided in Section 33-314(C)(3); provided, that the appropriate board fmds after public hearing that the modification or elimination, in the opinion of the Community Zoning Appeals Board, would not generate excessive noise or traffic, tend to create a fire or other equally or greater dangerous hazard, or provoke excessive overcrowding of people, or would not tend to provoke a nuisance, or would not be incompatible with the area concerned, when considering the necessity and reasonableness of the modification or elimination in relation to the present and future development of the area concerned. " As can readily be observed this section also lacks constitutionally required objective criteria and is therefore invalid. [FN8] [2][3] We are thus left with the question of what effect the invalidity of the criteria has on Omnipoint's application in light of the Fed. Act, which precludes local governments from prohibiting the provision of wireless services. Ordinarily when the code standards for special exceptions, unusual uses, new uses, and conditional uses are declared invalid, the opportunity to obtain the exception or other use is lost. See City of St. Petersburg v. Schweitzer, 297 So.2d 74 (Fla. 2d DCA 1974), cert. denied, 308 So.2d 114 (Fla. 1975). Here, however, unlike Schweitzer, we are dealing with the intent behind the Fed. Act. Keeping in mind that the Board denied Omnipoint an unusual use in a zoning district in which that use is pennitted after public hearing the County's unconstitutional hearing criteria have the effect of prohibiting the provision of personal wire services in violation of the Federal Telecommunications Act, 47 U.S.C. S 332(c)(7)(B)(i)(Iij. As the circuit court reached the right result (although Page 3 on a different basis) we deny the County's petition for writ of certiorari and leave intact the circuit court's remand to the Board for the purpose of the Board's granting approval of Omnipoint's application for the monopole. FN I. We do not reach the various questions as to substantial competent evidence. FN2. There is no doubt that wireless services--at least under present technology- require a series of poles of substantial height in order to function. FN3. Lady J. Lingerie v. City of Jacksonville, 176 F.3d 1358 (11th Cir.1999). FN4. The Jacksonville code language may be found at pp. 1369-70, Lady J. Lingerie. FN5. Sufficient guidelines are required so that: I. persons are able to determine their rights and duties; 2. the decisions recognizing such rights will not be left to arbitrary administrative determination; 3. all applicants will be treated equally; and 4. meaningful judicial review is available. FN6. Arguably Omnipoint did not preserve the constitutional question. However, sections 33-311(A)(3) and 33-311(A)(7) are fundamentally unfair and unjust. We therefore proceed to hold them invalid. See Pollock v. Department of Health & Rehabilitative Servs., 481 So.2d 548 (Fla. 5th DCA 1986). FN7. The earlier condition required development of Omnipoint's property in accordance with a specific site plan. The modification would amend the site plan so as to allow the monopole. FN8. As to Omnipoint's request for a non-use variance, the language of section 33-311(A)(4)(b) of the code (governing non- use variances) is also unconstitutional. See the discussion thereof in the concurring opinion in Miami-Dade County v. Brennan, 802 So.2d 1154 (Fla. 3d DCA 2001). END OF DOCUMENT Copr. @ West 2002 No Claim to Orig. U.S. Govt. Works COURT SHOULD HEAR APPEAL r{) .~ ~ A Third District Court of Appeal ruling that overturned a decision bv one oi Miami-Dade's 14 commu- nity councils has basically frozen the county's zoning process. The question in Miami-Dade County vs. Omnipoint Holdings dealt with the county's rejection of a permit to construct a cellphone tower in southwest Miami-Dade. But a three- judge panel on the DCA took the case much further than just overturning the zoning decision by declaring a section of the county's 70-year-old zoning code too vague and therefore unconstitutional. This is what has the county's zoning process paralyzed. Typically when an appellate court is going to consider such an important issue it will notifY both sides and ask for briefs on the subject. This deci- sion, written by Judge John Fletcher, came without any such notice or input. Judge Fletcher fou~d that the councils have too much discretion in making zoning decisions because the county's code lacks "objective crite- ria" to guide decision-makers, leaving applicants with not enough certainty. . This, said the judge, leads to arbitrary decisions that violate the Constitu- tion's guarantee of fairness. . The county is asking the Florida Supreme Court to hear its appeal of the case. We agree that it should. TItis ruling could put" into question other local governments' decisions on zon- Ing issues, since many cities and counties have adopted zoning codes similar to Miami-Dade's. Even before this ruling the county was working on rewriting sections of its zoning code. Now, while it waits ~ o l .... ,\ "h t:l ~ ~ ~ , ...... .~ ~ .---.;: ~. for the Supreme Court to decide if it will take up the appeal, the county is simultaneously trying to answer the DCA's concerns with a step-by-step approach to amending the code. And residents and developers with pend- ing applications are. stuck. The ruling affects a homeowner interested in putting up a shed as much as the builder of new sub-division. As county officials seek to inter- pret how far to take Judge Fletcher's call for "objective criteria," concerns are being raised by zoning experts and land-use lawyers about just how speciiic the criteria to judge whether a zoning application qualifies for approval would have to be. This brings into play the role of an elected official's discretion in such decisions. If the criteria .are so rigid that, say, a homeowner can't erect a shed even though all the neighbors approve, is that taking objectivity too far? Zoning may seem mundane. Not so once the owner of the lot next door obtains a variance to build a five-story apartment building in your single- family neighborhood. Equally impor- tant is the reliable nature of a local zoning process to the lenders and insurers of development projects. The Omnipoint decision raises questions important enough to Floridians' everyday lives to merit the Florida Supreme Court's time and attention. .1_.._...6_....,..._