98-22648 RESO
RESOLUTION NO. 98-22648
A RESOLUTION OF THE MAYOR AND CITY COMMISSION
OF THE CITY OF MIAMI BEACH, FLORIDA, APPROVING
PROCEDURES FOR SPECIAL MASTER PROCEEDINGS
PURSUANT TO THE FLORIDA LAND USE AND
ENVIRONMENT AL DISPUTE RESOLUTION ACT AS SET
FORTH IN THE A TT ACHED EXHIBIT A.
WHEREAS, pursuant to Section 70.51 of the Florida Statutes, the Florida Land Use and
Environmental Dispute Resolution Act ("Act"), was enacted; and
WHEREAS, the Act provides that an owner who believes that a development order or an
enforcement action of a government entity unreasonably or unfairly burdens the use of the owner's
real property may apply for relief through proceedings before a special master; and
WHEREAS, the Act provides that each government may establish procedural guidelines to
govern the conduct of special master proceedings authorized by the Act; and
WHEREAS, the Mayor and City Commission of the City of Miami Beach deem it advisable
to establish procedural guidelines in order to facilitate the smooth and efficient handling of claims
brought under the Act through the adoption of the guidelines set forth in the attached Exhibit A.
NOW, THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND CITY
COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, that the procedural guidelines
set forth in the attached Exhibit A are hereby adopted for use in special master proceedings brought
pursuant to the Florida Land Use and Environmental Dispute Resolution Act.
PASSED and ADOPTED this 21st day of
Januar1$
MAYOR
,1998.
ATTEST:
f:o Lcvt ~ P ~~
CITY CLERK
DJTlkw
FIA TTO\TURN\RESOSISPMGUIDERES
APPROVED AS TO
FORM & LANGUAGE
& FOR EXECUTION
4t(~
Date
PROCEDURAL GUIDELINES FOR
SPECIAL MASTER PROCEEDINGS
General Provisions
Guideline 1.
Guideline 2.
Guideline 3.
Guideline 4.
Purpose and Intent
Definitions
Time Requirements and Furnishing
Copies
Standards of Conduct
Pre-Hearing Procedures
Guideline 5.
Guideline 6.
Guideline 7.
Guideline 8.
Guideline 9.
Guideline 10.
Guideline 11.
Guideline 12.
Guideline 13.
Administrative Appeals and Judicial Review
Pre-Initiation Meeting
Request for Relief
Selection of Special Master
Special Master Agreement; Fees and
Expenses
Government Response to Request for Relief
Additional Parties to the Proceeding
Other Persons Who May Participate
Consolidation
Conduct of the Proceeding
Guideline 14.
Guideline 15.
Guideline 16.
Guideline 17.
Guideline 18.
Guideline 19.
Guideline 20.
Guideline 21.
Representatives
Order of the Proceeding
Mediation Phase
Information-gathering Hearing
Witnesses and Materials
Access to the Property
Offer to Compromise
Settlement
Post-Hearino Procedures
Guideline 22.
Guideline 23.
Guideline 24.
Guideline 25.
Special Master's Recommendation
Effect of Special Master's
Recommendation
Disposition of Special Master's
Recommendation
Sample Forms
EXHIBIT A
General Provisions
Guideline 1.
Purpose and Intent
(1) These guidelines establish procedures for the initiation,
conduct and conclusion of a special master proceeding
under the Florida Land Use and Environmental Dispute
Resolution Act involving a development order or
enforcement action by the City of Miami Beach. This
proceeding is voluntary for the landowner.
(2) This is a nonadjudicatory settlement and expedited
hearing procedure. A special master may not impose a
decision, but is intended primarily to explore
opportunities for compromise and to assist the parties in
negotiation. Settlement through the special master
process is intended to save time and money for all
parties.
(3) If a settlement is not reached, the special master will
conduct an independent and impartial assessment of the
dispute and prepare a nonbinding recommendation.
(4) The special master proceeding is intended to be a speedy,
inexpensive, simple and solution-oriented method for
settlement of land use and environmental disputes. As
much as possible, a landowner and regulator should meet
face-to-face and discuss issues directly without the need
for advocacy by a lawyer.
(5) The special master and the parties should adapt these
guidelines to the needs of each case, consistent with the
requirements of law.
Guideline 2.
Definitions
(1) "Development" means the carrying out of any building
activity or mining operation, the making of any material
change in the use or appearance of any structure or land,
or the dividing of land into three (3) or more parcels,
and all other work customarily associated with such
activities.
(2) "Development order" means any order which is or will have
the effect of granting, denying, or granting with
conditions an application for a development permit. It
includes the rezoning of a specific parcel of land. It
does not include actions on an amendment to the local
comprehensive plan.
(3) "Development permit" means:
( a)
Any building permit, zoning permit,
approval, certification, special
variance, or any other similar action
of Miami Beach; or
subdivision
exception,
of the City
(b) Any other permit by the City of Miami Beach which
has the effect of authorizing the development of
land including, but not limited to, programs
implementing Chapters 125, 161, 163, 166, 187, 258,
372, 373, 378, and 403, Florida Statutes.
(4) "Governmental entity" includes an agency of the state, a
regional or a local government created by the State
Constitution or by general or special act, any county or
municipality, or any other entity that independently
exercises governmental authority. The term does not
include the United States or any of its agencies.
(5) "Land" or "real property" means land and includes any
appurtenances and improvements to the land, including any
other relevant real property in which the owner has a
relevant interest.
(6) "Owner" means a person with a legal or equitable interest
in real property who has filed an application for a
development permit for the subject property with the City
of Miami Beach and who has received a development order,
or who holds legal title to the property that is the
subject of an enforcement action by the City of Miami
Beach.
(7) "Participant" means:
(a) A person with a legal or equitable interest in land
contiguous to the owner's property; or
2
(b) A substantially affected person who submitted oral
or written testimony, sworn or unsworn, of a
substantive nature which stated with particularity
support for or objections to the development order
or enforcement action in a prior proceeding,
including a public hearing.
(8) "Party" or "parties" include the owner, the City of Miami
Beach, and any other governmental entity made a party to
the proceeding.
(9) "Person" includes individuals, firms, incorporated or
unincorporated associations, joint ventures,
partnerships, estates, trusts, business trusts,
syndicates, fiduciaries, corporations, and all other
groups or combinations.
(10) "Proposed use of the property" means the proposal filed
by the owner to develop or otherwise use the owner's real
property.
Guideline 3.
Time Requirements and Furnishing Copies
(1) Unless the parties agree in writing to extend the time
for performing any act under these guidelines, including
the overall 165-day time period, a special master
proceeding may not continue longer than 165 days from the
date the owner files the request for relief.
(2) Any copy which must be furnished to the special master,
a party, or a participant may be sent by regular mail,
postage prepaid, or by hand delivery to the recipient's
last known address. The burden of proving a copy has been
furnished is on the person responsible for furnishing it.
(3) Except for an owner's request for relief, any document
which must be submitted, or any copy which must be
furnished, may be submitted or furnished by facsimile
transmission. Facsimile documents will be deemed
submitted or furnished on the date transmitted as shown
on the recipient's copy, if the copy is complete.
3
(4) Filing means that the signed original must be received by
the office that is to receive the document by the date
specified. Any document received after 5:00 p.m. shall
be deemed filed as of 8:00 a.m. the next regular business
day.
Guideline 4.
Standards of Conduct
(1) The special master holds a position of trust and should
adhere to the highest standards of personal integrity,
impartiality, and competence. The special master should
be honest and unbiased, act in good faith, be diligent
and avoid any conflict of interest or the appearance of
a conflict of interest. The special master should
disclose any facts or circumstances that may give rise to
justifiable doubts as to impartiality or independence.
(2) The parties and the special master may establish
additional standards of conduct for special master, and
standards of conduct for parties and participants, in a
special master agreement as authorized by Guideline 9(1).
Pre-Hearing Procedures
Guideline 5.
Administrative Appeals and Judicial Review
(1) A petition by the owner for judicial review of the
development order or enforcement action or a formal
administrative hearing pursuant to Section 120.57, F.S.,
if applicable, shall waive all rights to a special master
proceeding.
(2) A request for relief through a special master proceeding
shall toll the time for filing a petition for judicial
review of the development order or enforcement action.
(3) Invoking the procedures for a special master proceeding
is not a pre-condition for judicial review of the
development order or enforcement action.
(4) Prior to initiating a special master proceeding, the
owner must request review through the appropriate local
administrative appeal so long as review takes no longer
4
than four months. The filing of a valid appeal will toll
the time for filing a request for relief.
(5) The owner may initiate a special master proceeding within
30 days after conclusion of the appeal or, if the appeal
has not concluded, within 30 days after four months from
its commencement.
Guideline 6.
Pre-Initiation Meeting
(1) Prior to filing a request for relief, an owner may
request in writing an informal meeting with the City
Attorney to ascertain whether the issues relating to a
development order or enforcement action would be
appropriate for a special master proceeding or other form
of alternative dispute resolution. The City Attorney
shall convene such a meeting promptly and include staff
necessary to address the owner's concerns.
(2) The City of Miami Beach may agree with the owner in
writing to extend the time for filing a request for
relief to create an opportunity for mediation or other
form of alternative dispute resolution.
(3) A special master proceeding is intended to be an
additional remedy for the owner. It does not supplant
other lawfully available methods agreed to by the
parties, such as arbitration, mediation or other form of
dispute resolution.
Guideline 7.
Request for Relief
(1) Any owner who believes a development order or enforcement
action, by itself or in conjunction with the actions of
other governmental entities, is unreasonable or unfairly
burdens the use of the owner's use of real property may
file a request for relief.
(2) A request for relief must be filed within 30 days after:
(a) Receipt of the development order or enforcement
action; or,
5
(b) If a local administrative appeal is permissible,
the later of its conclusion or the expiration of
four months after its initiation.
(4) A signed original and one copy of the request for relief
must be filed with the Mayor of the City of Miami Beach,
1700 Convention Center Drive, 4th Floor, Miami Beach,
Florida 33139. No fee will be charged for filing a
request for relief.
(5) The request for relief must contain:
(a) A brief statement of the owner's proposed use of
the property.
(b) A summary of the development order or description
of the enforcement action. A copy of the
development order or documentation of the
enforcement action must be attached.
(c) A brief statement of the impact of the development
order or enforcement action on the ability of the
owner to achieve the proposed use of the property,
including an explanation why the development order
or enforcement action is unreasonable or an unfair
burden.
(d) The signature of the owner or, if the owner is a
corporation, partnership or other organization, the
signature of a responsible official, and the
mailing address and telephone number at which the
owner may be reached.
(e) A statement regarding whether a local
administrative appeal is available and, if so,
whether and when it was commenced by the owner and,
if completed, the date of completion.
(f) A certificate of service showing the parties,
including the government entities, served.
(6) Upon receipt of a request for relief, the Mayor shall
forward the copy of the request to the City Attorney and
6
the Director of Planning and Zoning.
Planning and Zoning shall:
The Director of
(a) Notify appropriate staff that the request was filed
and direct preparation of a response; and
(b) Confer with the owner or owner's representative, if
any, and any other governmental entity identified
as a party in the request for relief to agree on a
special master no later than 10 days from the date
the request for relief was received.
(c) Furnish a copy of the request for relief to:
1. Persons holding title to land contiguous to
the owner's property, at the address on the
latest County tax roll.
2. Persons who submitted oral or written
testimony, sworn or unsworn, of a substantive
nature which stated with particularity support
for or objections to the development order or
enforcement action. A copy must be furnished
to such a person only if that person requested
in writing or at a public hearing a desire to
be placed on a mailing list to receive notice
of any subsequent proceeding on the
development order or enforcement action at
lssue.
A copy provided for purposes of notice may omit
attachments or supporting documentation so long as
it informs the recipient where such materials may
be inspected and copied.
(7) The owner may voluntarily dismiss the proceeding at any
time by submitting a written request for dismissal to the
special master or, if one has not been selected, to the
Mayor of the City of Miami Beach. A voluntary dismissal
shall be effective upon filing with the special master
or, if one has not been selected, the Mayor of the City
of Miami Beach.
7
Guideline 8.
Selection of Special Master
(1) In order to serve as a special master in a proceeding
under these guidelines, a person must:
(a) Be a resident of the State of Florida;
(b) Possess experience and expertise in mediation; and
(c) Possess experience and expertise in at least one of
the following disciplines and a working familiarity
with the others:
1. Land use and environmental permitting;
2. Land planning;
3. Land economics;
4. Local and state government organization and
powers, and the law governing the same.
A special master need not be a lawyer or a mediator
certified by the Florida Supreme Court.
(2) The City Attorney shall forward the original request for
relief to the special master upon selection.
(3) Any member of the Florida Bar selected as a special
master in a particular matter shall not, for that reason,
be disqualified from serving as counsel in any other
matter before the City of Miami Beach.
(4) If the owner, any other governmental entity identified as
a party in the request for relief, and the City Attorney
do not agree on a special master, they shall jointly
agree on an impartial third party to select the special
master according to agreed criteria.
Guideline 9.
Special Master Agreement; Fees and Expenses
(1) The special master and the parties shall memorialize the
selection of the special master in an agreement which
8
shall provide for the payment of all fees and expenses
associated with the proceeding. In addition, a special
master agreement may:
(a) Vary the time for performance of any act.
(b)
Establish ground rules for the conduct of
proceeding, including standards of conduct for
special master, parties and participants, and
enforceability of subpoenas in circuit court.
the
the
the
(c) Identify factual issues to be addressed in the
proceeding or specify procedures for resolving
factual issues, including stipulation.
(d) Provide for the exchange of information by the
parties prior to the mediation or hearing.
(e) Identify participants known to the parties who
should be notified of the proceeding.
(f) Address such other issues as the parties may decide
will assist in settlement of the dispute.
(2) Payment of fees and expenses for the special master, and
costs of providing notice and effecting service, shall be
borne equally by the parties. Other costs shall be paid
as agreed by the parties.
(3) A special master shall be compensated as agreed in
writing by the special master and the parties upon
selection or as thereafter modified in writing. Parties
may place funds on deposit to assure payment at the
conclusion of the proceeding, or provide a retainer
against which fees and expenses will be charged.
(4) The parties may authorize the special master to retain an
independent expert, or to obtain any materials, to assist
in evaluating any issue. Fees and costs will be paid as
agreed in writing by the parties and the special master.
9
Guideline 10. Government Response to Request for Relief
(1) Within 15 days after the filing of a request for relief,
the government entity shall file a response to the
request for relief with the special master. A copy shall
be furnished to the owner and any person who has
requested to participate in the proceeding.
(2) The response shall set forth in reasonable detail the
position of the City of Miami Beach regarding the matters
raised by the owner. The response must include a brief
statement explaining the public purpose of the
regulations on which the development order or enforcement
action is based.
(3) The response may include a request that the special
master dismiss the owner's request for relief for any
failure to observe these Guidelines. If the request is
dismissed, the owner may be permitted to file an amended
request within a reasonable time fixed by the special
master. Failure to file an adequate amended request
within the time specified by the special master shall
result in final dismissal of the matter without the right
to submit another request. A final dismissal may not be
appealed.
(4) Any party may request, in its response or otherwise, a
request to be dropped from the proceeding. The request
must set forth facts and circumstances to aid the special
master in deciding on the request. All such requests
must be disposed of prior to a hearing on the substance
of the owner's request for relief. If the special master
denies a request to be dropped, that party shall
participate in the proceeding.
Guideline 11. Additional Parties to the Proceeding
(1) The special master may add additional governmental
entities as parties to the proceeding when:
(a) The owner or the City of Miami Beach requests the
special master to add that governmental entity to
the proceeding as a party; and
10
(b) The development order or enforcement action is the
culmination of a process involving a governmental
entity in addition to the City of Miami Beach; or
(c) A complete resolution of all relevant issues would
require active participation of that additional
governmental entity.
(2) A governmental entity added as a party shall actively
participate in the proceeding as set forth in these
Guidelines and as required by the special master.
Guideline 12. Other Persons Who May Participate
(1) Other persons who may participate in the proceeding are:
(a) Any person with a legal or equitable interest in
land contiguous to the owner's property; or
(b) Any substantially affected person who submitted
oral or written testimony, sworn or unsworn, of a
substantive nature which stated with particularity
support for or objections to the development order
or enforcement action in a prior proceeding.
(2) Within 21 days after a request for relief is filed with
the City of Miami Beach, a person seeking to participate
must submit a written request to participate. The
request must state:
(a) The person has a legal or equitable interest In
land contiguous to the owner's property and, if so,
identify the land in relation to the owner's
property; or
(b) How the person is substantially affected by the
development order or enforcement action at issue.
The request must be submitted to the special master or,
if one has not yet been selected, to the City Attorney
for forwarding to the special master after selection.
11
(3) The special master may decide any issue necessary to
determine whether a person qualifies as a participant. If
the special master accepts a request to participate, the
person or any witnesses and representatives shall address
only those issues raised regarding al ternati ves,
variances, and other types of adjustment to the
development order or enforcement action which may impact
the participant's substantial interests, unless the
parties agree to allow a participant to address
additional issues. Participants shall not be granted
party or intervenor status. Denial of a request to
participate may not be appealed.
Guideline 13. Consolidation
(1) If there are separate matters which involve similar
issues or identical parties, they may be consolidated if
the parties agree and it appears that consolidation would
promote the speedy, efficient, and inexpensive resolution
of the matters.
(2) If the separate matters are pending before different
special masters, the parties may decide which special
master will conduct the consolidated proceeding. If they
cannot agree on one or multiple special masters to
conduct the proceeding, the proceedings shall not be
consolidated.
Conduct of the Proceeding
Guideline 14. Representatives
(1) A party or participant may be represented by an attorney
or other person at any phase of the proceeding, but such
representation is not required.
(2) At the mediation, each party shall be represented by a
person with authority to bind that party to a settlement,
or to recommend a settlement directly to the persons with
authority to bind the party. The special master may ask
a representative to provide assurances of such authority.
12
Guideline 15. Order of the Proceeding
(1) In keeping with the intent of the Legislature that the
special master proceeding be a flexible, problem-solving
procedure which results in a voluntary settlement, the
special master may conduct the phases of the proceeding
in any sequence and on separate days.
(2 )
The proceeding shall be
a location accessible
physically handicapped.
open to the public and be held in
to the public, including the
(3) The proceeding shall be conducted under the direction and
supervision of the special master. The special master
shall determine the order of presentation of issues and
information unless otherwise set forth in the special
master agreement. The special master shall decide
questions of procedure in a manner which provides
reasonable due process.
(4) Prior to any other portion of the proceeding, the special
master shall conduct a hearing on any request to dismiss
the request for relief.
(5) At any time after commencement of the information-
gathering hearing, the special master may recess the
hearing to recommence mediation and facilitation.
(6) After the hearing, the special master may re-convene the
parties to present a written recommendation, in draft or
final form, and seek to re-commence negotiations.
Guideline 16. Mediation Phase
(1) The special master I s first responsibility is to
facilitate a resolution of the dispute and arrive at a
settlement acceptable to the parties. It may involve a
modification of the owner's proposed use of the property
or adjustment in the development order or enforcement
action or regulatory efforts by one or more of the
governmental parties.
(2) The special master shall, among other things, suggest
alternatives, analyze issues, question perceptions, use
13
logic, stimulate and facilitate negotiations between the
parties, and keep order. The special master at all times
will promote conciliation, cooperation, compromise and
settlement of the dispute within the bounds established
by law.
(3) As al ternati ves, variances, and other types of
adjustments to the development order or enforcement
action are presented, the special master shall afford
participants an opportunity to address the impacts of
such adjustments on their substantial interests.
Guideline 17. Information-gathering Hearing
(1) Within 5 days of receipt of the request for relief, the
special master shall provide written notice of the place,
date, and time of the hearing to all parties, and to all
persons who have requested such notice. The hearing must
be held within 45 days of the special master's receipt of
the request for relief. The parties may agree to extend
the date for the hearing.
(2)
The hearing must be held in the City of Miami Beach.
special master's decision on the specific place of
mediation and hearing shall be final.
The
the
(3) The special master shall hear from anyone with
information necessary to understand the matter. The
special master may question anyone presenting information
at the hearing, but shall give all parties an opportunity
for follow-up questions.
(4) The special master shall weigh all information offered at
the hearing. Information shall not be subj ect to the
rules of evidence, but the determination of verification
and authentication are within the special master's
discretion.
(5) At any time, the special master may require any party to
provide additional information in the interest of gaining
a complete understanding of the request for relief.
14
(6) Each party may record the hearing at its own expense. The
special master may record the hearing to assist in
preparing a recommendation. If the special master makes
such a recording, it shall be forwarded to the City of
Miami Beach with the recommendation.
(7) Any documents or tangible materials presented to the
special master at the hearing shall be submitted to the
City Attorney with the special master's recommendation.
Any notes or drafts produced by the special master and
not intended to record information in a permanent form
shall remain the property of the special master.
(8) If a party fails to appear at the hearing after notice,
the special master may proceed without that party or may
adjourn the hearing to another day, giving notice to the
absent party.
Guideline 18. Witnesses and Materials
(1) Each party must assure attendance at the hearing by those
persons qualified by training or experience to address
issues raised by the request for relief, the response, or
by the special master, or to address alternatives,
variances, and other types of modifications to the
development order or enforcement action.
(2) The special master may issue a subpoena for any nonparty
witness in the state who will aid in the disposition of
the matter. A subpoena issued by a special master may
require the witness to bring a specified document or
thing.
(3) The special master may require and receive documents and
other tangible materials from any party or participant.
All parties and participants shall have the opportunity
to examine and respond to such submissions.
(4) The special master may weigh the credibility of
witnesses.
(5 )
Although an
compelled to
attorney
appear or
is not
furnish
required,
documents
any person
or tangible
15
materials, or who appears voluntarily, may be represented
and advised by legal counsel at the person's own expense.
Guideline 19. Access to the Property
(1) A request for relief constitutes a consent by the owner
for the special master and parties or representatives to
have reasonable access to the owner's land.
(2) The owner may grant access to the land to participants.
Guideline 20. Offer to Compromise
(1) As provided by law:
(a) All actions or statements of the special master,
the parties, and all participants are evidence of
an offer to compromise and are inadmissible in any
judicial or administrative proceeding.
(b) The proceeding may not be made known by an party or
participant to any judicial or administrative
tribunal, or be construed for any purpose as an
admission against interest.
(2) A party or participant is not bound by anything said or
done during the proceeding unless a written settlement is
reached, in which case only the terms of the written
settlement shall be binding.
(3) The special master may not be called to appear before the
Mayor and City Commission of the City of Miami Beach with
respect to any aspect of the proceeding, nor may the
special master be compelled to furnish notes or drafts.
Guideline 21. Settlement
(1) The owner and the City of Miami Beach may enter into a
settlement agreement or other agreement as to the
permissible use of the owner's land prior to the special
master filing a recommendation.
16
(2) A settlement agreement or other agreement as to the
permissible use of the owner's land may be executed
subject to approval by the Mayor and City Commission of
the City of Miami Beach. Any such agreement shall not
bind any party until duly approved and executed by all
parties to the agreement.
Post-Hearing Procedures
Guideline 22. Special Master's Recommendation
(1) The special master shall file a recommendation with the
Mayor of the City of Miami Beach within 14 days after the
conclusion of the hearing. The special master shall
furnish a copy to all parties and participants.
(2) If a settlement agreement or other agreement as to the
permissible use of the owner's land is executed prior to
the special master's recommendation, the recommendation
shall only:
(a) Set forth the date and location of the hearing;
(b) Identify the parties and other participants in
attendance at the hearing;
(c) Record, without comment, the fact that a settlement
agreement or other agreement as to the permissible
use of the owner's real property has been executed;
and
(d) Include, as an attachment, an executed copy of the
settlement agreement or other agreement as to the
permissible use of the owner's property.
(3) If a settlement agreement or other agreement as to the
permissible use of the owner's land is not executed prior
to the filing of the special master's recommendation, the
special master shall consider the facts and circumstances
set forth in the request for relief, any responses, and
any other information produced at the hearing to
determine whether the development order or enforcement
action, by itself or in conjunction with an action of the
17
City of Miami Beach or another governmental entity, is
unreasonable or unfairly burdens the owner's real
property.
(4) In making a determination, the special master may
consider, among other things:
(a) The history of the real property, including when it
was purchased, how much was purchased, where it is
located, the nature of the title, the composition
of the property, and how it was previously used.
(b) The history of development and use of the real
property, including what was developed and by whom,
if it was subdivided, how and to whom it was sold,
whether plats were filed or recorded, and whether
infrastructure and other public services or
improvements may have been dedicated to the public.
(c) The history of relevant environmental protection
and land use controls and other regulations,
including how and whether the land was classified,
any uses that may have been proscribed, and what
changes in classifications have occurred.
(d) The present nature and extent of the real property,
including natural and altered characteristics.
(e) The reasonable expectations of the owner at the
time of acquisition, or immediately prior to the
implementation of the regulation at issue,
whichever is later, under the regulations then in
effect and under common law.
(f) The public purpose sought to be achieved by the
development order or enforcement action, including
the nature and magnitude of the problem addressed
by the underlying regulations on which the
development order or enforcement action is based;
whether the development order or enforcement action
is necessary to the achievement of the public
purpose; and whether there are al ternati ve
development order or enforcement action conditions
that would achieve the public purpose and allow for
18
reduced restrictions on the use of the owner's
land.
(g) Uses authorized for and restrictions placed on
similar property, including adjacent lands.
(h) Any other information determined to be relevant by
the special master or agreed by the parties to be
addressed by the special master.
(5) The special master shall utilize his or her expertise in
formulating a recommendation and, in applying this
expertise, shall rely upon the sort of information that
a reasonable, prudent person would rely upon in the
conduct of his or her affairs.
(6) If the special master determines the development order or
enforcement action, by itself or in conjunction with
another action of the City of Miami Beach or another
governmental entity, is not unreasonable and does not
unfairly burden the owner's land, the special master
shall recommend that the development order or enforcement
action remain undisturbed and the proceedings shall end.
(7) If the special master determines the development order or
enforcement action, by itself or in conj unction with
another action of the City of Miami Beach or another
governmental entity, is unreasonable or unfairly burdens
the owner's property, and the owner has consented, the
special master may recommend one or more alternative
actions that protect the public interest served by the
regulations at issue but allow for reduced restraints on
the use of the owner's real property. The alternatives
may include:
(a) An adjustment of land development or permit
standards or conditions controlling the development
or use of the owner's land.
(b)
Increases
intensity,
or modifications in the density,
or use of areas of development.
(c) The transfer of development rights.
19
(d) Land swaps or exchanges.
(e) Mitigation, including payments in lieu of on-site
mitigation.
(f) Location of the development or use at issue on the
least sensitive portion of the property.
(g) Conditioning the amount of development or use
permitted on the owner's land.
(h) A requirement that issues be addressed on a more
comprehensive basis than a single proposed use or
development.
(i) Issuance of the development order or withdrawal of
the enforcement action.
(j) Purchase of the owner's land, or an interest in it,
by the City of Miami Beach or another governmental
entity.
If an apportionment of responsibility among governmental
entities is necessary, the special master shall make such
apportionment.
(8)
The special master
recommendation to
Affairs.
shall furnish a copy of the written
the Florida Department of Legal
(9) The special master's recommendation shall be a public
record. A copy shall be available for public inspection
and copying at the office of the Clerk of the City of
Miami Beach.
Guideline 23. Effect of Special Master's Recommendation
(1) The special master's recommendation shall be advisory
only and not binding on the owner or the City of Miami
Beach.
20
(2) A special master's recommendation constitutes data in
support of and a support document for a comprehensive
plan or a comprehensive plan amendment.
(3) A special master's determination that the development
order or enforcement action, by itself or in conjunction
with actions of the City of Miami Beach or another
governmental entity, is unreasonable or unfairly burdens
the owner's land may serve as an indication of sufficient
hardship to support a modification, variance, or special
exception as otherwise authorized by applicable rules and
regulations.
Guideline 24. Disposition of Special Master's Recommendation
(1) Within 45 days of receipt of the special master's
recommendation, the City of Miami Beach shall:
(a) Accept the recommendation as submitted and
implement it in the ordinary course and consistent
with all other rules and regulations; or
(b) Modify the recommendation as submitted and
implement it in the ordinary course and consistent
with all other rules and regulations; or
(c) Reject the recommendation as submitted. Failure to
act within 45 days of receipt of the recommendation
shall be deemed a rejection, unless the owner and
the City of Miami Beach agree to an extension of
time.
(2) If the City of Miami Beach adopts a recommendation to
grant a modification, variance, or special exception to
the application of ordinances or regulations as they
otherwise would apply to the land, the owner may not be
required to duplicate processes in which the owner
previously has participated in order to effectuate the
modification, variance or special exception.
(3) If the special master recommends relief or other action,
the City Attorney, in conjunction with any other
governmental entity which is a party, shall confer with
21
appropriate staff from the other entities to review the
recommendation and determine whether a joint staff
recommendation can be made to the heads of the respective
governmental entities.
(4) Within 15 days after final action on the special master's
recommendation by the City of Miami Beach, its Clerk
shall send a copy of the order or other document
memorializing final action to the Florida Department of
Legal Affairs.
(5) Within 10 days of final action on the recommendation, the
owner shall notify the City Attorney in writing whether
the owner accepts the decision on the recommendation.
(6) If the City of Miami Beach accepts the recommendation or
modif ies it and the owner rej ects the acceptance or
modification, or if the City of Miami Beach rejects the
recommendation, the City shall issue a written decision
that describes as specifically as possible the use or
uses available on the owner's land. The decision shall
be issued within 30 days of final action on the
recommendation, unless extended by agreement of the
parties.
(7) After the City of Miami Beach has acted on the
recommendation and a written decision has been issued
describing the use or uses available on the owner's land,
or if the City of Miami Beach has not acted within 45
days, the owner may seek a formal adjudication on the
development order or enforcement action as otherwise
authorized by law.
22
OFFICE OF THE CITY ATTORNEY
~ ofc.l/dmm. ~
F
L
o
R
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A
MURRAY H. DUBBIN
City Attorney
Telephone:
Telecopy:
(305) 673-7470
(305) 673-7002
COMMISSION MEMORANDUM NO.
4- 5- 9 ~
DATE: JANUARY 21,1998
TO:
MA YOR NEISEN KASDIN
MEMBERS OF THE CITY COMMISSION
MURRAY DUB BIN ... (). IV
CITY ATTORNEY fVY\ V!J1J:fJ""
SERGIO RODRIGUEZ
CITY MANAGER
FROM:
SUBJECT:
A RESOLUTION ADOPTING PROCEDURES FOR SPECIAL MASTER
PROCEEDINGS PURSUANT TO THE FLORIDA LAND USE AND
ENVIRONMENTAL DISPUTE RESOLUTION ACT
The attached Resolution is recommended by the City Attorney's Office to establish
procedural guidelines in order to facilitate the smooth and efficient handling of claims brought
before a the special master pursuant to the Florida Land Use and Environmental Dispute Resolution
Act ("Act") set forth in Section 70.51 of the Florida Statutes. This legislation was enacted as an
alternative to the Bert 1. Harris Private Property Rights Act for property owners to resolve disputes
with government entities when they believe that a development order or an enforcement action is
"unreasonable" or "unfairly burdens the use" of real property. Pursuant to Section 70.51 (28) of the
Act, governments may establish procedural guidelines to govern the conduct of special master
proceedings under the Act. Thus, the attached guidelines are submitted for your consideration and
adoption.
DJT\kw
FIA TTO\TURNIRESOS\SP~GU1DE.MEM
Attachment
Date
Item L. , A
1-2\-98'
Agenda
1700 Convention Center Drive - Fourth Floor - Miami Beach, Florida 33139