R7 B - R5 M Letter KHR to City Commission re RM3 and Vacating 21st St ROW 5.10.21
May 10, 2021
By Email to: DanGelber@miamibeachfl.gov By Email to: MickySteinberg@miamibeachfl.gov By Email to: MarkSamuelian@miamibeachfl.gov By Email to: Michael@miamibeachfl.gov By Email to: stevenmeiner@miamibeachfl.gov
By Email to: RickyArriola@miamibeachfl.gov By Email to: DavidRichardson@miamibeachfl.gov
Mayor and City Commission
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 (City Commission Agenda Item R5 M) and the Vacation of a Portion of the Southern Half of 21st Street between Collins Avenue and Miami Beach Drive (City Commission Agenda Item R7 B).
Dear Honorable Mayor and City Commissioners: I represent The Dempsey-Vanderbilt (“Dempsey-Vanderbilt”) and the Setai Resort and Residences Condominium Association, Inc, (“Setai Condo”) the association of the owners of the properties located at 2001 Collins Avenue, Miami Beach, Florida concerning the
above referenced matters. 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 21st Street east of Collings Avenue. For the reasons set forth below, my clients object to both the proposed text amendment and the vacation
of right of way and respectfully requests that the City deny both. TRANSFERING 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,
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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. THE DEMPSEY VANDERBILT HOTEL
The Dempsey Vanderbilt Hotel and ocean view units therein are 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 21st Street between Collings Avenue 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, the Dempsey Vanderbilt Hotel’s iconic ocean views across the Seagull Hotel property are protected. In fact, Setai Hotel Acquisition (“SHA”) 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. The diminution of the protected views as well as the value of the units adversely affects my client.
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
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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.
The current regulation protects existing and established view corridors by providing that the “proposed addition 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 underlying
Planning Department Staff Report which was 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 Staff 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 and its unit owners. Hence, the 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/Bvlgari 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
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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 Planning
Staff Report, the owner of the Seagull Hotel, in order to accommodate a new hotel
operator and a major renovation, 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 as well as those particularly affected units by eliminating their 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
hearing. 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.
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ILLEGAL TAKING OF PROPERTY RIGHTS The City’s adoption of the text amendments proposed by BHI constitutes an illegal taking
of property rights of Dempsey Vanderbilt and the unit owners. The text amendment
eliminates ocean view corridor, which is a property right. The Dempsey Vanderbilt and its unit owners 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 individual units owner including 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. 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. Sincerely,
Kent Harrison Robbins
Kent Harrison Robbins Attorney for the Dempsey-Vanderbilt and the Setai Resort and Residences Condominium Association, Inc.
cc Alina T. Hudak, City Manager by email to: alinahudak@miamibeachfl.gov Raul Aguila, City Attorney by email to: raulaguila@miamibeachfl.gov Rafael Granado, City Clerk by email to: rafaelgranado@miamibeachfl.gov Thomas Mooney, Planning Director by email to:
thomasmooney@miamibeach.fl.gov