3cTO: Honorable Vice Mayor DATE: February 16, 2010
FROM: Laurence Feingold, City Attorney Z 4 � J RE: Your questions below
y- *
1. Is it legal to limit height to 2 stories adjacent to single family homes?
2. Does the Bert J. Harris Act or any other laws make adding this to our Land
Development Code illegal?
3. Does the recent activities of Dr. Zakharia in filing documents with the
Planning Department since his lawsuit increase his chance of winning the
lawsuit?
There is no easy answer to your first questions; because when legislation limiting usage is
proposed, the Planning staff of the local government will first determine the impact of the
proposed legislation. It is the actual use of the prior zoning benefits by property owners that tells
us whether or not Bert J. Harris might apply. So your answer to question one is YES subject to
the Planning Staff giving us a valid survey of current uses. Similarly, with your second
question, our Planning staff must examine the actual usage of the property before answering your
questions. You can have a situation where on the same street one property owner could be
protected by Bert J. Harris but other property owners would not be protected. As to your last
question, I believe that the recent activities of Dr. Zakharia since his lawsuits with our Planning
Department are futile gestures.
It is one of the functions of your City Attorney to ensure the legality of the legislations passed by
the City Commission.
It is one of the functions of your City Manager to carry out the legislative directives of the City
Commission. Fortunately, our current Manager also has a proven record of innovative policy
making.
Said functions are complicated when residential uses are immediately adjacent to commercial
uses.
The interests of homeowners are at odds with the interest of commercial property owners. ThuS
if residential owners can simply outvote commercial owners they may properly impose
restrictions on the commercial uses through zoning related legislation.
Since 1926, the U.S. Supreme Court has held that Zoning is a valid exercise of a Municipality's
police power. Village of Euclid v. Ambler Realty 272 US 365 (1926).
Based upon Euclid and other cases, commercial property owners in South Miami knew or should
have known for years, that when they purchase a property subject only to very limited
restrictions as to use, then in the event, they must go forward with their Project fairly quickly to
ensure that their investment expectations are actually realized.
TO PUT IT ANOTHER WAY WHEN YOU BUY PROPERTY WITH FRIENDLY ZONING,
YOU EITHER USE IT OR RISK LOSING IT.
Event the Bert J. Harris Act specifies that "the term existing use means an actual present use or
activity on the real property" Sec. 70.001 (3)(b), Fla Stat. (2006).
Therefore, Dr. Zakharia's prescription for filing new papers with the Planning Department after
his appeal and lawsuit simply does not recognize the real illness or the cure.
On or about Dec 12, 2009 Dr. Zakharia submitted to the City a zoning district map zoning
application which will allow him to build a 4 story mixed use building. If that was approved,
Dr. Zakharia would try for a building permit.
All of the above conduct, six weeks after Dr. Zakharia's initial lawsuit appears to instill a fear
that the City will now face millions of dollars from new Bert J. Harris lawsuits.
The strategy appears to be that Dr. Zakharia will now have an additional new lawsuit, a Bert J.
Harris claim.
Dr. Zakharia's prescription is wrong because even a building permit would not give the doctor a
vested right under Bert J. Harris. Even such a building permit does not give rise to a Bert J.
Harris Act claim because applying for a building permit does not create a vested right for the
property owner:
"The Fourth District has held that possession even of a building permit does not create a
vested property right. See City of Boynton Beach v. Carroll, 272 So.2d 171,173 (Fla.4 "'
DCA 1973) ( "It follows then, and it has been so held, that if the possession of a building
permit does not create a vested right, then a mere application for a building permit
cannot create a vested right." (Citing Los Angeles v. Superior Court, 34 , Cal. Rptr. 161
(Cal. Dis. C. App. 1963))). See also Walker v. Indian River County, 319 So. 2
596,599 -600 (Fla. 4`h DCA 1975).
So the Doctor's prescription to solely identify the illness, as the City's proposed zoning and to
identify his cure as the Bert J. Harris Act totally ignores the reality that he has simply made a
bad investment. According to the Kiplinger's Report, of August 7, 2009 South Florida
properties will remain depressed in value for 15 — 20 years.
Indeed our City Manager, Mr. Carlton, separately reported to this Honorable Commission on
December 17, 2009 that the greatest housing price decreases for 100 Cities Nationwide is
projected to be in Miami for 2010 and 2011. Citing Fortune Magazine, Mr. Carlton stated that
"the price decrease is projected to be 32.99% in 2010 followed by 4.2% in 2011. Mr. Carlton
not only reported the real issue but informed the City that "this establishes a basis for substantial
concern"
For a City Manager of Mr. Carlton's track record, the answer many times is innovative planning
that could hopefully turn lemons into lemonade, but that is not our core issue in discussing the
Bert J. Harris Act.
On our core issue, it is my opinion that the City will prevail in any Bert J. Harris litigation
The mere purchase of land without more never did create a right to rely on existing zoning. C
of Miami Beach v. 8701 Collins Avenue Inc. 77 So. 2d 428 (Fla. 3d DCA 2003), A subjective
expectation that land can be developed is not more than an expectancy and does not translate into
a vested right to develop the property Namon v. Dept. Environmental Reg., 558 so. 2" d 504 (Fla.
3d DCA 1990). If the land owner did not start development prior to the enactment of these land
regulations, they acted at their own peril in relying on the absence of zoning ordinances changes.
It would be inconceivable to allow the landowner to ignore evolving and existing land use
regulations under circumstances when they have not taken any steps in the furtherance of
developing their land. Shands v. Marathon City Council 999 So.2d 718 (Fla. 3d DCA 2009).
Local government action to "down- zone" or "down plan" a particular area, or reduce height
limits, is the most difficult element for a landowner to prove that he or she was "inordinately
burdened" by such a decision to downzone. Regulatory actions have been upheld against takings
claims even where they dramatically diminished the value of the property, including impacts
potentially as great as 95% . Susan Trevarthen, Advising the Client Regarding Protection of
PropeM Rights: Harris Act and Inverse Condemnation Claims, 78 Fla. B.J. 61, 61 (2004) see
Hadacheck v. Sebastian, 239 U.S. 394 (1915) (90% reduction of value, not a taking); Graham v.
Estauary Properties, 399 so. 2d 1374 (Fla. 1981) at 1382. (75% reduction of value not a taking);
Penn Central Co. v. New York City, 438 U.S. 104 (1978) at 124.
In Florida, so long as the approved zoning allows some economically viable use, a landowner is
not entitled to more favorable or economically valuable zoning. Lee County v. Morales, 557
So.2d 652. 655 (Fla. 2d DCA 1990), rev.den., 564 So.2d 1086 (Fla. 1990), where the Court
rejected a takings claim against a "down- zoning" because the resulting densities were
economically viable and the reductions were not made arbitrarily, but for valid planning reasons.
CONCLUSION
The Bert J. Harris Act has little or no practical applicability for property owners in South Miami.
In the 14 years that this Statute has been law, no awards have been allowed by any Court in
Florida in favor of the property owner. This Commission has the absolute discretion to reduce
the height of the property from a maximum height permitted by the Zoning Ordinance. There is
no entitlement by land owner as a matter of right as to the maximum of height. Our Courts have
held appropriately to restrict the height of a project to make it compatible to the existing adjacent
neighborhood. On the 62nd Avenue Corridor, our Planners did an appropriate survey to
determine that there were no vested rights that were inordinately burdened. If we seek to impose
further height restrictions throughout the City, similar surveys are recommended to establish that
there are no vested rights that are inordinately burdened. Subject to that Caveat, it would be
improper to allow developers to ignore evolving and existing land use regulations under
circumstances when they have not taken any steps in the furtherance of developing their land.
The City of South Miami should debate the facts not the fears or threats.
END OF MEMORANDUM