Letter from Gray Robinson Esq dated 5.11.21 RE R5 M
BOCA RATON
FORT LAUDERDALE
FORT MYERS
GAINESVILLE
JACKSONVILLE
KEY WEST
LAKELAND
MELBOURNE
MIAMI
NAPLES
ORLANDO
TALLAHASSEE
TAMPA
WASHINGTON , DC
WEST PALM BEACH
333 S.E. 2ND AVENUE
SUITE 3200
MIAMI , FLORIDA 33131
TEL 305-416-6880
FAX 305-416-6887
gray-rob inson.com
305-416-6880
BRADLEY .G OULD @GRAY -ROBINSON .COM
May 11, 2021
Via Email Only To:
DanGelber@miamibeachfl.gov
MickySteinberg@miamibeachfl.gov
MarkSamuelian@miamibeachfl.gov
Michael@miamibeachfl.gov
stevenmeiner@miamibeachfl.gov
RickyArriola@miamibeachfl.gov
DavidRichardson@miamibeachfl.gov
Honorable Mayor and City Commissioners
City of Miami Beach
1700 Convention Center Drive
Miami Beach, Florida 33139
Re: City Commission Hearing on the RM3 Oceanfront Ground Floor and Rooftop
Additions (Agenda Item R5 M) and the Vacation of a Portion of the Southern Half of
21 st Street between Collins Avenue and Miami Beach Drive (Agenda Item R7 B).
Dear Honorable Mayor and City Commissioners:
I represent the Setai Hotel Acquisition LLC (“SHA”) in connection with the above referenced
matter. Please allow this letter to serve as my proffer of testimony for the Commission Meeting
on Wednesday, May 12, 2021 in connection with the proposed text amendment to RM3 Oceanfront
Ground Floor and Rooftop Additions and the vacation of a portion of the southern half of 21 st
Street between Collings Avenue and Miami Beach Drive. For the reasons set forth below, my
client objects to both the proposed text amendment and the vacation of right of way and
respectfully requests that the City deny both.
THE DEMPSEY VANDERBILT HOTEL
SHA purchased 88 units consisting of The Dempsey Vanderbilt Hotel located at 2001 Collins
Avenue, Miami Beach FL in 2015. As the owner of The Dempsey Vanderbilt Hotel, my client is
adversely affected by the proposed text amendment to RM3 Oceanfront Ground Floor and Rooftop
Additions and the vacation of a portion of the southern half of 21 st Street between Collings Avenue
Honorable Mayor and City Commissioners
May 11, 2021
Page 2
GRAY ROBINSON
PROFESSIONAL ASSOCIATION
and Miami Beach Drive. The Dempsey Vanderbilt Hotel has always enjoyed ocean views across
the Seagull Hotel property. The City adopted Resolution 2007-3589 which amended Section 142-
246(d), in order to protect established and existing view corridors and prevent them from being
substantially reduced. Thus, at the time my client purchased The Dempsey Vanderbilt Hotel
through today its iconic ocean views across the Seagull Hotel property are protected. In fact, my
client relied upon Section 142-246(d) and the protected ocean view corridor when it decided to
purchase the hotel. Part of the bundle of rights purchased by SHA is the protected view corridor,
and as such the protected ocean views are part of SHA’s reasonable investment backed
expectation.
OCEAN VIEW CORRIDOR IS A PROTECTED PROPERTY RIGHT
There is a common misconception about whether views can ever be a protected property right.
While views are not property rights under common law, they can be statutorily created and thus
become protected property rights. In the oft cited case Fontainebleau Hotel Corp. v. Forty-Five
Twenty-Five, Inc. , 114 So.2d 357, the Third District Court of Appeals held that a landowner does
not have a common law right to air, light and view across the adjacent property unless by contract
or statute . The Court explained that if “public policy demands that a landowner in the Miami
Beach area refrain from constructing buildings on his premises that will cast a shadow on the
adjoining premises, an amendment of its ….zoning ordinance … is the means by which such
purpose should be achieved.” Id. at 360. In compliance with the Court’s holding, in 2007, the City
amended its zoning ordinance to protect existing and established view corridors thereby creating
a property right in the ocean view corridor of The Dempsey Vanderbilt Hotel.
PROPOSED TEXT AMENDMENT
BHI Miami Limited (“BHI”)has proposed text amendments to the RM-3 Oceanfront Ground Floor
and Rooftop Additions Within the Architectural District (Section 142-246). BHI is planning to
redevelop the property with the Bvlgari Hotel. BHI recently purchased the subject property and
as a result purchased it subject to the existing RM-3 regulations, including the limitations on
enhancing and enlarging the former Seagull Hotel Building. BHI seeks to build an addition which
would increase the height and width allowed under the existing code. BHI wants to increase the
height and width of the addition to create additional ocean views. BHI is allowed to construct an
addition under the existing regulations, but has proposed the text amendments to allow for an
enhanced and enlarged Bvlgari Hotel which is inconsistent with the existing regulations.
Although the Staff Report does not mention it, the most significant aspect of the proposed text
amendments is the elimination of the language that provides for the protection of established and
existing view corridors. See Section 142-246(d). This language was added to the code in 2007
pursuant to Resolution 2007-3589. The City recognizing the importance of ocean views, adopted
this provision to prevent ocean views from being eliminated by building additions. By adopting
Resolution 2007-3589, the City created a property right in existing and established view corridors.
Honorable Mayor and City Commissioners
May 11, 2021
Page 3
GRAY ROBINSON
PROFESSIONAL ASSOCIATION
The current regulation protects existing and established view corridors by providing that the
“proposed addition shall not shall not substantially reduce existing or established view
corridors ….” Statutory construction requires language added to have an effect and meaning and
therefore, the only conclusion is that the language was added to protect existing and established
view corridors and prevent building additions from substantially reducing them. Any argument to
the contrary violates statutory construction.
STAFF REPORT GROSSLY INADEQUATE
The City cannot legally adopt the proposed text amendment as a result of the Staff Report which
is grossly inadequate. The Staff Report intentionally fails to analyze or even identify that the
proposed text amended eliminates the protection of existing and established view corridors. While
Staff discusses other aspects of the proposed amendment, the report does not discuss the view
corridors even though Staff was well aware that BHI’s proposed development violates the existing
regulations because it would substantially reduce an existing or established view corridor enjoyed
as a property right by the Dempsey Vanderbilt Hotel. Hence City has intentionally not properly
evaluated the effects of the proposed text amendment which constitutes an abuse of discretion and
bad faith. The City cannot legally adopt the proposed text amendment until Staff has properly and
adequately evaluated the proposed text amendment.
QUASI-JUDICIAL HEARING
The hearing on the proposed text amendments should be a quasi-judicial hearing. The proposed
text amendments are designed to effectuate a single project, the Seagull Hotel/Bvlgaria Hotel
property. The City’s determinations impact a single, particular property and thus effectually, is an
application of policies on a particular property and not the imposition of new legislative policy.
The City’s determinations are intended to be project specific to the proposed expansion and
enlargement of the Seagull Hotel. Furthermore, the specific project and the City’s action are
intentionally designed to adversely impact the Dempsey Vanderbilt Hotel and specific room lines
which are individually owned and folioed condominium units. Because the actions before the City
Commission will have an impact on a limited number of persons and property owners, and the
decision is contingent on facts arrived at form distinct alternatives by applying rather than setting
policy, the Dempsey Vanderbilt Hotel and its individual units that are adversely affected are
entitled to a quasi-judicial hearing with all related due process rights and protections. This includes
being allowed to participate in the hearing under the quasi-judicial rules of the City of Miami
Beach which provides the right to cross-examine witnesses, call expert witnesses, and to obtain
other protections and rights of procedural due process. Unless the hearing is a quasi-judicial
hearing, the Dempsey Vanderbilt Hotel is being denied its fundamental right to due process and to
a meaningful hearing.
ILLEGAL SPOT ZONING
The proposed text amendment constitutes illegal spot zoning. As set forth in the Staff Report, the
owner of the Seagull Hotel, in order to accommodate a new hotel operator and a major renovation,
Honorable Mayor and City Commissioners
May 11, 2021
Page 4
GRAY ROBINSON
PROFESSIONAL ASSOCIATION
proposed the text amendment to the Land Development Regulations. The Staff Report identifies
said owner as the applicant for the proposed text amendment. The purpose of the proposed text
amendment is to allow the owner to develop the Seagull Hotel contrary to the existing Land
Development Regulations. Thus, the proposed text amendment is intended to apply only to the
applicant’s property. It provides preferential treatment to the Seagull Hotel property.
Additionally, as drafted it negatively affects only the Dempsey Vanderbilt Hotel by eliminating its
protected ocean view corridor.
CONTRACT ZONING
The City’s adoption of the proposed text amendments constitutes contract zoning and is therefore
illegal. The proposed text amendments and the vacation of the right of way are inexplicitly
intertwined and as a result, the Planning Board combined both into one agenda item. Since the
City already has an easement pursuant to the plat dedication, the vacation of the right of way and
then simultaneous re-conveyance back to the City for $7,000,000 constitutes a payment to the City
in exchange for the proposed text amendments as well as future development orders as the actual
payments are conditioned upon obtaining various development orders such as a temporary
certificate of occupancy and a certificate of occupancy.
VIOLATION OF SUBSTANTIVE DUE PROCESS
The City’s adoption of the text amendments proposed by BHI is a violation of substantive due
process pursuant to the Florida and United States Constitution. The City is acting arbitrary,
capricious, unreasonable and for improper motives. The text amendment only benefits BHI and
its proposed development plans and it is solely detrimental to the Dempsey Vanderbilt Hotel.
ILLEGAL TAKING OF PROPERTY RIGHTS
The City’s adoption of the text amendments proposed by BHI constitutes an illegal taking of
property rights of SHA. The text amendment eliminates SHA’s property right of ocean view
corridor. SHA will suffer significant economic impact due to the City’s elimination of its property
right to ocean views. The proposed text amendments will significantly impact SHA’s reasonable
investment backed expectation to own and operate a hotel with ocean views that were protected
property rights pursuant to Section 142-246(d). The City’s adoption of the text amendment will
constitute governmental interference with property rights.
BERT J. HARRIS PRIVATE PROPERTY RIGHTS ACT
The City’s adoption of the text amendment will trigger the Bert J. Harris Private Property Rights
Act. It is a government action that is being applied to the Dempsey Vanderbilt Hotel which
inordinately burdens an established or vest right.
Honorable Mayor and City Commissioners
May 11, 2021
Page 5
GRAY ROBINSON
PROFESSIONAL ASSOCIATION
TRANSFERRING CITY PROPERTY RIGHTS AND INCREASING FAR WITHOUT A
REFERENDUM
We note that a public interest advocate, Miami Beach United, (“MBU”) has objected to the
proposed vacation of 21st Street. MBU has argued, and we agree, that the proposed transfer and
aggregating of City property (that currently provides a vested easement to the beach) with the
property of the Seagull/Bvlgari increases the FAR on the Seagull/Bvlgari site, without a
referendum, and breaches one or more provisions of Section 1.03 City Charter that were approved
by the electors to protect the citizens, residents, and property owners of the City of Miami Beach.
These referendum requirements were acquired through citizen referendum elections This proposal
violates the letter and intent of those provisions which are to be broadly construed to protect the
public interest. The proposed City Commission vote to circumvent these City Charter protected
referendum provisions would illegally, without due process, abridge the City Charter.
NOTICE OF ZONING ORDINANCE AMENDMENT DEFICIENT
The City and State required notices for the reading and hearing of the proposed zoning text
amendment related to RM3 Oceanfront Ground Floor and Rooftop Additions were not placed in
the agenda package submitted to the City Commission and appear to have not been provided. The
matter should not be heard. The lack of timely notice has prevented my clients from marshalling
its evidence, calling its witnesses, and preparing its argument in this cause. Moreover, compliance
with said notice requirements is jurisdictional and renders any action, without such required notice,
nugatory
Respectfully submitted,
Bradley S. Gould
BSG/jd
cc: Alina T. Hudak, City Manager (via email to: alinahudak@miamibeachfl.gov)
Raul Aguila, City Attorney (via email raulaguila@miamibeachfl.gov )
Rafael Granado, City Clerk (via email rafaelgranado@miamibeachfl.gov)
Thomas Mooney, Planning Director (via email thomasmooney@miaimibeachfl.gov)