LTC 478-2018 Sunset Land Associates, LLC v. Mark Festa, Maureen Festa, Vincent J. Festa, Barbara A. Festa, The Festa Trust, Beach Towing Services, Inc., Beach Towing Services of Miami, Inc., Consolidated Storage Yards, Inc., Goofe Partners, Inc.,MIAMI BEACH
OFFICE Of
LTC No.#
TO:
FROM:
cc:
DATE:
SUBJECT:
LETTER TO COMMISSION
478-2018
Mayor Dan Gelber and Me~ of the City Commission
Raul J. Aguila, City Attorne?~
Jimmy L. Morales, City Manager
Rafael E. Granado, City Clerk
August 31, 2018
Sunset Land Associates, LLC v. Mark Festa, Maureen Festa, Vincent J. Festa,
Barbara A. Festa, The Festa Trust, Beach Towing Services, Inc., Beach Towing
Services of Miami, Inc., Consolidated Storage Yards, Inc., Goofe Partners, Inc.,
Miami Avenue Properties, Inc., 1718 Bay Road Corporation, Festa Transport and
Storage, Inc., and Corona Storage, LLC
On July 25, 2018, the City Commission directed the Office of the City Attorney to seek leave of
court and file an amicus curiae brief in the above-captioned litigation, in order to provide the
Court with the Planning Director's zoning interpretation relating to the Defendants' towing
operation at 1349 Dade Boulevard, and whether the use is a legal, non-conforming use in
compliance with Chapter 118 of the City Code, at Article IX, entitled "Nonconformances."
Pursuant to the City Commission's direction, the City's motion and brief were filed on August 30,
2018.
A copy of (1) the amicus curiae brief filed with the Court, and (2) the Planning Director's
determination that the Beach Towing operation is a legal, non-conforming use, is attached to
this Letter to Commission.
Please do not hesitate to contact me if you have any questions.
Filing# 77282812 E-Filed 08/30/2018 05:35:20 PM
IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT
IN AND FOR MIAMI-DADE COUNTY, FLORIDA
SUNSET LAND ASSOCIATES, LLC,
Plaintiff,
v.
MARK FESTA, individually and as trustee,
MAUREEN FESTA, VINCENT J. FESTA,
individually and as trustee, BARBARA A. FESTA,
individually and as trustee, THE FESTA TRUST,
and BEACH TOWING SERVICES, INC., BEACH
TOWING SERVICES OF MIAMI, INC.,
CONSOLIDATED STORAGE YARDS, INC.,
GOOFE PARTNERS, INC., MIAMI A VENUE
PROPERTIES, INC., 1718 BAY ROAD
CORPORATION, FESTA TRANSPORT AND
STORAGE, INC., and CORONA STORAGE, LLC,
Defendants, and
THE LOFTS AT SOUTH BEACH
CONDOMINIUM ASSOCIATION, INC.,
Intervenor-Defendant.
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) CASENO.
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) 2016-4547-CA-01
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BRIEF OF THE CITY OF MIAMI BEACH
AS AMICUS CURIAE
RAULJ. AGUILA, CITY ATTORNEY
CITY OF MIAMI BEACH
1700 Convention Center Drive, 4th Floor
Miami Beach, Florida 3 313 9
Telephone: (305) 673-7470
Facsimile: (305) 673-7002
By: s/Nicholas E. Kallergis
NICHOLAS E. KALLERGIS
Senior Assistant City Attorney
nickkallergis@miamibeachfl.gov
Florida Bar No. 105278
Counsel for Amicus Curiae
TABLE OF CONTENTS
TABLE OF AUTHORITIES ......................................................................................................... iii
IDENTITY AND INTEREST OF AMICUS CURIAE .................................................................... 1
ARGUMENT ................................................................................................................................... !
I. Introduction and Factual Background .................................................................................. 1
II. The City has an interest in the proper application and enforcement of its Land
Development Regulations .................................................................................................... 2
III. Deference should be accorded to the administrative determinations of the City's Planning
Director ................................................................................................................................ 4
IV. As determined by the City's Planning Director, Defendants' towing operation is a legal,
non-conforming use ............................................................................................................. 5
CONCLUSION ................................................................................................................................ 5
CERTIFICATE OF SERVICE ........................................................................................................ 6
11
TABLE OF AUTHORITIES
Amisub (North Ridge Hasp., Inc.) v. Department of Health and Rehabilitation Servs.,
577 So. 2d 648 (Fla. 1st DCA 1991) oooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooo5
Las Olas Tower Co. v. City of Ft. Lauderdale,
742 So. 2d 308 (Fla. 4th DCA 1999) .. ooooooooooooooooooooooooooooooooooooooooooooooooooooo
0
oooooooooooooooooooooooooooo5
State ex rei. Helseth v. DuBose,
128 So. 4 (Fla. 1930) 0000000000oOOOOOoOOooooooooo•••ooooooooooooooooooo•·•·oo•·oooooooooooo.oooooo .. oooooooooooo0000000000004, 5
Winemiller v. Feddish,
568 So. 2d 483 (Fla. 4th DCA 1990) oooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooo.5
Statutes
Miami Beach City Code §§ 106-211 -106-222 oooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooo2
Miami Beach City Code§ 114-1 ooooooooooooooooooooooooooooOOooooooooooooooooooooooooooooooooooooooooOOooooooOOoooooooooooooooo•3, 4
Miami Beach City Code§ 114-2 oooooooo···•oooooooooooooooooo•oo•oooo••••oooooooooo·oo····· .. ooooooooooooooooo ........... ooooo .... oo3
Miami Beach City Code § 114-4 . 00.00 00 00 00 00 00 00 00 .... 00 00.00 00 00.00 00 00 00 00 00 ... 00 00 00.00 00 ...... 00 00 00 00 00.00 .. 00 .. 00 00 00 00 00 00 . .3
Miami Beach City Code § 114-7 00 00 00 00 00 .. 00 00 00 00 00 00 00 .. 00 00 00 00 00 00 00 00 .. 00 .. 00 00 .. 00 .... 00 00 .... 00 00 00 ...... 00 00 00 00 oo 00 00 00 003
Miami Beach City Code§ 118-390 oooooooooooooooooooooooooooooooo•oooooooo0000000000000000000000000000000000000000000000000o0000004
Miami Beach City Code§ 118-397 oooooooooooooooooooo•oo•••oooooooo ..... oo .. oo .. ooooooo•oo•oooo··•oooooooooooooooo ......... oo .. oo.4
111
IDENTITY AND INTEREST OF AMICUS CURIAE
The City of Miami Beach (the "City") is a Florida municipal corporation, organized and
operating under the laws of the State of Florida. The City's interest in the Sunset Land
Associates, LLC v. Mark Festa, et al. litigation is to ensure the proper enforcement and
application of the City's Land Development Regulations. Specifically, the City desires to aid the
Court in the zoning issue underlying whether, pursuant to the City's Land Development
Regulations, the Defendants' towing operation located at 1349 Dade Boulevard, Miami Beach,
Florida, is (1) a legal, non-conforming use in compliance with Chapter 118 of the City Code, at
Article IX, entitled "Nonconformances," or (2) an illegal use.
ARGUMENT
I. Introduction and Factual Background.
On July 28, 2016, Plaintiff Sunset Land Associates, LLC filed a Second Amended
Complaint in this litigation which, at Count 18, "requests that the Court declare that Defendants'
operation of a towing service at 1349 Dade Boulevard is unlawful, [and] issue an injunction
permanently barring Beach Towing and the Festa Defendants from operating a vehicle towing
service at that site .... " Second Amended Complaint, at Count 18. Directly at issue in the
litigation is whether, pursuant to the City's Land Development Regulations, Defendants' current
towing operation at 1349 Dade Boulevard is a legal, non-conforming use, in compliance with
Chapter 118 of the City Code, at Article IX, entitled "Nonconformances." See Second Amended
Complaint, at Count 18.
At a hearing on April 23, 2018, on Defendants' Motion for Partial Summary Judgment,
the Honorable Judge Rodolfo A. Ruiz suggested, on several occasions, that the pleadings be
1
amended to join the City as a party to the litigation or, alternatively, that the City file an amicus
curiae brief stating the City's position. The Court recognized that the City has an interest in the
interpretation of its Land Development Regulations, because "all of [the City's] resolutions are at
[issue]. All of [the City's] permits are at issue." See Transcript of April 23, 2018 Hearing, at
39:17-18. Subsequently, at a hearing on May 29, 2018, Judge Ruiz stated, "I would like to have
the City of Miami Beach come to court." See Transcript of May 29, 2018 Hearing, at 10:15-16.
Notwithstanding the above requests, the Court expressly ruled on June 12, 2018, that "the City of
Miami Beach is not an indispensable party" to the litigation.
However, in light of Judge Ruiz's comments on April 23, 2018, and May 29, 2018, and
given the City's interest in the consistent application of its Land Development Regulations, the
City Commission of the City of Miami Beach voted on July 25, 2018, to direct the City Attorney
to seek leave of court and file this brief, in order to provide the Court with the City Planning
Director's zoning interpretation as to whether the Defendants' towing operation is (1) a legal,
non-conforming use, or (2) an illegal use. Further, Defendant Beach Towing Services, Inc.
("Beach Towing") is one of only two current permittees providing towing services to the City's
Parking Department and Police Department, and the public services provided by Beach Towing
are implicated in the litigation. I
II. The City has an interest in the proper application and enforcement of its Land
Development Regulations.
The City's Land Development Regulations, set forth in Chapters 114 through 142 of the
Miami Beach City Code ("City Code"), establish the City's zoning regulations, consistent with
1 The City Commission has authorized, pursuant to City Code Sections 106-211 through 106-
222, the issuance of a Towing Permit to Beach Towing Services, Inc., which grants Beach
Towing the ability to conduct towing and/or storage of vehicles that are identified by the City's
Parking Department or Police Department as requiring removal from the public rights-of-way
within the City.
2
the City's Comprehensive Plan. The Land Development Regulations include, inter alia, district
regulations identifying permitted, conditional, and prohibited uses in each of the City's zoning
districts. The Code provides that, "[i]n interpreting and applying the provisions of the land
development regulations, they shall be held to be the minimum requirements for the promotion
of the public safety, health, convenience, comfort, prosperity, or general welfare." Miami Beach
City Code Section 114-2(b).
The Miami Beach City Code vests the City Administration with broad authority to apply
and enforce the City's Land Development Regulations. The City has the authority-and, indeed,
the obligation-to ensure the Land Development Regulations are complied with. The Code
provides, in pertinent part, as follows:
"No building ... or part thereof [shall] be used except for a
use permitted in the district in which the building is located."
Miami Beach City Code Section 114-4(1).
"It shall be the duty of the planning, design and historic
preservation division and the department of code compliance to
enforce the provisions of these land development regulations and
to refuse to approve any permit for any building or for the use of
any premises, which would violate any of the provisions of these
land development regulations. . . ." Miami Beach City Code
Section 114-7(a).
"In case any building . . . or land is used in violation of
these land development regulations, the city's planning and zoning
director, building official, and director of the department of code
compliance, or the city in their behalf is authorized and directed to
institute any appropriate action to put an end to such violation."
Miami Beach City Code Section 114-7(c).
Further, Chapter 118 of the City Code, at Article IX, entitled "Nonconformances,"
establishes regulations governing "non-conforming uses," which are defined as "a use which
exists lawfully prior to the effective date of these land development regulations and is maintained
3
at the time of and after the effective date of these land development regulations, although it does
not conform to the use restrictions of these land development regulations."2 City Code Section
114-1. Section 118-390 defines "nonconformity" as "a use, building, or lot that does not comply
with the regulations of this article," and provides that "[ o ]nly legally established nonconformities
shall have rights under this section." The term "legally established" is defined, in pertinent part,
to apply to "[a]n existing use which conformed to the code at the time it was established." City
Code Section 118-390(d)(3).
The City Code vests the City's Planning Director with the authority to make a
determination as to the existence of a nonconforming use, and as to whether such nonconforming
use was "legally established." In so doing, the Planning Director "may make use of affidavits
and investigation in addition to the data presented on the city's building card, occupational
license or any other official record of the city." City Code Section 118-397(a). If a non-
conforming use is determined to be legally established, and all other applicable requirements of
the City Code have been satisfied, then such legal, non-conforming use shall be allowed to
continue.
III. Deference should be accorded to the administrative determinations of the City's
Planning Director.
Florida case law has consistently recognized that "courts should not set aside the
determination of public officers relative to municipal zoning ordinances, unless it is clear that
their action has no foundation in reason and is a mere arbitrary exercise of power without
2 The City's regulations on nonconformances provide that "[t]he intent of this section is to
encourage nonconformities to ultimately be brought into compliance with current regulations."
However, the Code highlights that "[n]othing contained in this article shall be deemed or
constmed to prohibit the continuation of a legally established nonconforming use, stmcture, or
occupancy, as those tenns are defined in section 114-1." City Code Section 118-390(a).
4
reference to public health, morals, safety, or welfare." State ex rel. Helseth v. DuBose, 128 So.
4, 7 (Fla. 1930). "Generally, a reviewing court should defer to the interpretation given a statute
or ordinance by the agency responsible for its administration." Las Olas Tower Co. v. City of Ft.
Lauderdale, 742 So. 2d 308, 312 (Fla. 4th DCA 1999) (citing Winemiller v. Feddish, 568 So. 2d
483, 485 (Fla. 4th DCA 1990); Amisub (North Ridge Hasp., Inc.) v. Department of Health and
Rehabilitation Servs., 577 So. 2d 648, 649 (Fla. 1st DCA 1991)).
As set forth in Section II, supra, the City's Planning Director is charged with interpreting,
applying, and enforcing the City's Land Development Regulations. Pursuant to Florida case law,
the Planning Director's interpretations of the City's land development regulations-including the
Director's determinations as to whether a use that is inconsistent with current zoning regulations
is a legal, non-conforming use-should be given judicial deference.
IV. As determined by the City's Planning Director, Defendants' towing operation is a
legal, non-conforming use.
Pursuant to the City Code, and at the request of the City Commission, the City's Planning
Director has undertaken an analysis as to whether the Beach Towing operation is a legal, non-
conforming use under the City Code. Based on the nature of the towing operation, the zoning
district regulations in effect at the time the use commenced, and the continuous nature of such
use until the present, the Planning Director has concluded that Defendants' towing operation is a
legal, non-conforming use. The Planning Director's interpretation is attached hereto and
incorporated herein as Exhibit "A".
CONCLUSION
In light of the City's interest in the application and enforcement of its Land Development
Regulations, the City respectfully requests that the Court afford deference to the Planning
5
Director's interpretation that the Beach Towing operation is a legal-nonconfonning use, and that
the towing operation may continue in accordance with the applicable provisions of Chapter 118,
Article IX of the City Code.
Respectfully Submitted,
RAUL J. AGUILA, CITY ATTORNEY
CITY OF MIAMI BEACH
1700 Convention Center Drive, 4th Floor
Miami Beach, Florida 33139
Telephone: (305) 673-7470
Facsimile: (305) 673-7002
By: s/Nicholas E. Kallergis
NICHOLAS E. KALLERGIS
Senior Assistant City Attorney
nicldi:allergis@miamibeachfl.gov
Florida BarNo. 105278
Counsel for Amicus Curiae
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was electronically
filed with the Clerk of Court through the Florida Courts eFiling Portal to be served this 30th day
of August, 2018, on all counsel ofrecord.
s/Nicholas E. Kallergis
NICHOLAS E. KALLERGIS
Senior Assistant City Attorney
6
PLANNING DEPARTMENT
MEMORANDUM
TO: Mayor Dan Gelber and the Members of the City
FROM: Thomas Mooney, AICP, Planning Director
DATE: August 30, 2018
SUBJECT: 1349 Dade Boulevard -Determination of Legal Non-Conforming Status for
Beach Towing Services, Inc. ("Beach Towing")
Overview
On July 2018, the City Commission, pursuant to item R9E, directed the City Attorney
to file an Amicus Brief with regard to the pending litigation between Beach Towing and
Land Associates Inc. Specifically, the Commission requested that the Amicus
Brief the Planning Director's interpretation of the City Code regarding whether
Beach Towing is a legal nonconforming use.
Background
Beach Towing is 1349 Dade Boulevard, which has been zoned CD-2
(Commercial, Medium Intensity) since the adoption of City Ordinance No. 89~2665 on
October 1, 1 Prior to October 1, 1 989 the property at 1 Dade Boulevard was
zoned (Intensive Commercial District).
Towing Is not currently a permitted use in the zoning district. According to the City
of Miami Beach Finance Department, the original Occupational License for towing
services at 1349 Boulevard (RL~86098263) was issued on September 1986.
This Occupational License (now referre.d to as a Business Tax Receipt or BTR) has
been renewed by Towing, and approved by the City, every year since then
through present day. The BTR is currently active.
When Occupational License for Towing Services at 1349 Dade Boulevard (RL~
86098263) was first issued on or before September 23, 1986, the list of permitted uses
within the CM6 District included the following, under Sec 6~13.8.1 of the then~applicable
Zoning Ordinance:
Any non~residentiaf use permitted in C~5 Districts, except those listed as
Conditional Uses.
Within the zoning district, the following was listed as a permitted use under 6~
12.8.20 of the Zoning Ordinance, when Beach Towing's Occupational License was first
issued on or before September 23, 1986:
Exhibit A
1349 Dade Boulevard-Legal Non-Conforming Status
August 30, 2018
Pege2
Storage Garages, automobile and truck storage, within an area enclosed by an
opaque masonry waH or structural wood fence not than 6 feet in height.
Such wall or fence shalf totally screen garage and work area from public view.
Towing services are consistent with the above noted permitted use under 6-12.8.20
of the Zoning Ordinance in the C-5 zoning district. As such, within the C-6 district, such
use would fall wlth1n 6-13.B. 1 of the Zoning Ordinance, which allows as a permitted
use 'Any non-residential use permitted in C-5 Districts, except those listed as Conditional
Uses: Based upon the review of City records, this is also consistent with the application
of these regulations by applicable City staff in 1986.
Establishment of Legal Non-Conforming Status
Currently, towing is not a permitted use in the CD~2 zoning district. such, no new
towing service uses would be permitted at 1349 Dade Boulevard, or in any CD-2 zoning
district within the City.
In accordance with Sec. 118~397 of the City Code, pertaining to the existence of a
nonconforming building or use, the Planning and Zoning is required to make a
determination as to the qf a nonconforming use or building. In making such
determination, in addition to other information, the data presented on the occupational
license or any other official record of the City, may be utilized. Additionally, pursuant to
Sec. 118~390( d)(3) of the City Code, "legally established;' shall apply to an existing use
which conformed to the City Code at the time it was established.
In this particular instance, towing were established 1 Dade Boulevard on
or before September 1986, pursuant to the of Occupational License RL-
Such use conformed to the requirements of the City Code in place on or
before September 1986, and therefore constitutes a legally established use.
Further, since the legally established use for towing services at 1349 Boulevard
has continued without interruption since least September 23, 1986, and continues to
date, it would be considered a Legal Non~Conformlng Use. As such, the towing
use at the Beach Towing site on 1349 Dade Boulevard may continue to operate in
accordance with the applicable provisions of Chapter 118, Article IX of the City Code.
Jimmy L Morales, City Manager
Raul Aguila, City Attorney
Granado, City Clerk