It appears that despite the poor economy and tight municipal budgets, short-term rentals are targeted as the cause of all nuisances with little to no economic benefit to the community.
Below are links to short-term rentals in the news.
Wednesday, April 22, 2009
Communities Debate Short-term Rentals
Many communities around the country are debating restrictions or prohibitions for short-term rentals.
Sunday, April 19, 2009
Special Master Jurisdiction Change - What's Happening?
At the April 6, 2009 Land Use and Development Committee Meeting, the ordinance to "clarify" the jurisdiction of the special master was debated. Below are the minutes of the meeting as posted on the City's web site:
AFTER-ACTION: Gary Held, First Assistant City Attorney, introduced the item. He explained that the proposed ordinance was a clarification of existing law that already applied to limit special master review of appeals from notices of violation, and that the City Commission referred the item to the Committee during its consideration at first reading. Motion: (Diaz / Wolfson - vote 2-0) The Committee instructed the Administration to bring back the proposed ordinance to the LUDC and incorporate the following changes:
- Remove the applicability clause regarding pending proceedings before the City's Special Master.
- Outside of this particular ordinance, recommend on how to address the due process issue of when and how persons receive notice of administrative determinations by the Planning Director, for example by either posting interpretations to the City's web site, reporting them to the City Commission, codifying them, and/or amending language on notices of violation by Code Compliance that explains that appeals of the Planning Director's or other officials' decisions are to the Board of Adjustment, and other applicable boards.
It appears that despite the Committee's desire to bring the item back to committee for further revision and review, the proposed ordinance has been placed on the Commission's Agenda for April 22, 2009 for 2nd Reading and Public Hearing at 11:15AM. See Agenda item posted here on the City's web site.
Friday, April 17, 2009
Broward's Wilton Manors and Dade's Miami Beach to Face Lawsuits for Short-term Rental Bans
Posted on Daily Business Review
Wilton Manors
Recent ban on short-term rentals invites lawsuit by 14 homeowners
April 02, 2009 By: Terry Sheridan
The house on Northwest Second Avenue in Wilton Manors looks like any other lushly landscaped single-family home with a pool in a pleasant community.
But owners Louis Heidel and James Lang don’t use their house like most of their neighbors do. In ads on http://www.altraverse.com/, Heidel and Lang invite vacationers to “enter, exhale, escape” and rent the house.
Now they and 12 other owners of vacation-rental homes face city citations of $500 per day for code enforcement violations after Wilton Manors voted recently to ban short-term rentals in residential areas.
The 14 owners are suing the city, saying officials misinterpreted their own zoning law. Their lawsuit in Broward Circuit Court is one of several similar actions across the state as property owners take on municipalities eager to eliminate “businesses” operating in residential areas.
The property owners named in the lawsuit individually or as companies — including Heidel, Lang, Jeffery Hill, William Williams, Money Tree 1 and 2 LLC, 2016 Mid Century House LLC and Pleas’D in Lauderdale LLC — filed a seven-count suit last week. They claim the city’s decision to change its short-term rental law denied them due process and is an inverse condemnation of their properties. An inverse condemnation claim alleges a government action has taken or diminished property value, and owners typically seek to be paid for that loss.
The owners want the city’s action overturned.
None of the owners could be reached for comment.
The city has not responded to the suit.
City Attorney Kerry Ezrol of Goren Cherof Doody & Ezrol in Fort Lauderdale did not return a phone call.
Mayor Gary Resnick, an attorney in the Fort Lauderdale office of GrayRobinson, declined to comment on the lawsuit.
“It’s my understanding that these people bought these houses knowing they weren’t zoned for short-term rentals,” he said.
The City Commission voted Feb. 24 that single-family homes rented out more than three times per year or for less than 30 days at a time should be considered businesses or transient housing. Transient housing isn’t allowed in the residential zoning district where the properties are located, so the city issued code enforcement citations to the owners.
Click play to listen to Rick Rumrell
City officials voted incorrectly, said the owners’ attorney, Richard Rumrell of Rumrell Costabel Warrington & Brock in St. Augustine. Not only does the zoning allow rental housing in the neighborhood where the houses are located, but the code doesn’t specify the duration and frequency of rentals, he said.
“Municipalities are not allowed to enforce zoning codes the way they would like those codes to read; they must enforce the codes based on how they actually read,” Rumrell said.
The owners, who have public lodging and occupational licenses, purchased the properties “with the reasonable investment-backed expectation that they could rent ... without restriction on duration of rental,” according to the lawsuit.
The owners’ complaint could lead to a Bert J. Harris Private Property Rights Protection Act claim against the city “if damages continue against the owners’ private property rights,” Rumrell said.
The 1995 state law allows property owners to seek damages from public agencies if they show new regulations diminish property values.
Wilton Manors took zoning action after a complaint last year about parties and loud music from an unidentified neighbor of one of the properties.
In January, the city’s Planning & Zoning Board offered city officials three options on how to handle short-term rentals. All were rejected in favor of the outright ban, although the owners worked with city planners to craft an alternative policy over the last year.
Rumrell also represents 11 property owners in Venice, near Sarasota, in a pending vacation rental case almost identical to the one in Wilton Manors.
In 2006, the Venice zoning director restricted single-family rentals within a residential district to either one month or three rentals of less than 30 days per year, whichever amounts to the least number of days.
Property owners challenged the restriction, and last year Sarasota Circuit Judge Robert Bennett Jr. ruled against the city restriction.
Bennett concluded that unlimited temporary rentals are permitted in an area zoned for residential use.
“Zoning regulations [should be] construed broadly in favor of property owners absent a clear intent to the contrary,” he wrote.
The owners’ claim for damages, which could include the loss of rental income, still is pending.
Rumrell said he also has been contacted by Miami Beach property owners who are considering a lawsuit in the wake of a new city ordinance banning short-term rentals.
He declined to identify the owners because he has not yet been retained.
Miami Beach city commissioners in late February banned short-term rentals of less than six months in single-family neighborhoods. The ordinance took effect March 7.
The action came after years of debate and stemmed from a 2000 interpretation by Planning Director Jorge Gomez.
The new law is expected to spur action on a pending lawsuit by hospitality services company Villazzo LLC against the city, said Gary Held, the first assistant city attorney.
Villazzo offers short-term rentals of luxury homes worldwide to celebrities, sports figures and others who want to avoid the publicity resulting from a hotel stay.
Villazzo and the owner of a mansion at 10 Palm Ave. sued the city in 2007 after the company was cited for advertising the house as a short-term rental.
The suit was filed after Miami Beach officials approved a sweeping ban on all commercial uses of single-family homes early last year.
But the new short-term rental ban also applies.
The suit “was on hold for over a year due to mediation, but it has not been resolved because of the ordinance adopted, and we’ll be back in litigation shortly,” Held said.
Richard Freeman, Villazzo’s former attorney, referred calls to John Shubin of Shubin & Bass in Miami. He did not return a phone call seeking comment.
Jupiter Inlet Colony, a Palm Beach County community of about 250 single-family homes just south of Jupiter Island, sued the owners of three properties late last year for advertising their houses for short-term rentals.
The town bans businesses but does not prohibit short-term rentals, said Geoff Jones of Jeck Harris Raynor & Jones of Juno Beach, the owners’ attorney.
The town now is considering an ordinance that would ban vacation rentals. The case is pending.
______________________
The Issue
The attorney for 14 homeowners suing Wilton Manors over a ban on short-term rentals says the case could evolve into a Bert Harris claim if the city pursues alleged damages against the owners’ property rights. According to the suit, the owners had “reasonable investment-based expectations” when they bought their properties that they would be able to rent their houses without restrictions.
Here’s what that means:
Wilton Manors
Recent ban on short-term rentals invites lawsuit by 14 homeowners
April 02, 2009 By: Terry Sheridan
The house on Northwest Second Avenue in Wilton Manors looks like any other lushly landscaped single-family home with a pool in a pleasant community.
But owners Louis Heidel and James Lang don’t use their house like most of their neighbors do. In ads on http://www.altraverse.com/, Heidel and Lang invite vacationers to “enter, exhale, escape” and rent the house.
Now they and 12 other owners of vacation-rental homes face city citations of $500 per day for code enforcement violations after Wilton Manors voted recently to ban short-term rentals in residential areas.
The 14 owners are suing the city, saying officials misinterpreted their own zoning law. Their lawsuit in Broward Circuit Court is one of several similar actions across the state as property owners take on municipalities eager to eliminate “businesses” operating in residential areas.
The property owners named in the lawsuit individually or as companies — including Heidel, Lang, Jeffery Hill, William Williams, Money Tree 1 and 2 LLC, 2016 Mid Century House LLC and Pleas’D in Lauderdale LLC — filed a seven-count suit last week. They claim the city’s decision to change its short-term rental law denied them due process and is an inverse condemnation of their properties. An inverse condemnation claim alleges a government action has taken or diminished property value, and owners typically seek to be paid for that loss.
The owners want the city’s action overturned.
None of the owners could be reached for comment.
The city has not responded to the suit.
City Attorney Kerry Ezrol of Goren Cherof Doody & Ezrol in Fort Lauderdale did not return a phone call.
Mayor Gary Resnick, an attorney in the Fort Lauderdale office of GrayRobinson, declined to comment on the lawsuit.
“It’s my understanding that these people bought these houses knowing they weren’t zoned for short-term rentals,” he said.
The City Commission voted Feb. 24 that single-family homes rented out more than three times per year or for less than 30 days at a time should be considered businesses or transient housing. Transient housing isn’t allowed in the residential zoning district where the properties are located, so the city issued code enforcement citations to the owners.
Click play to listen to Rick Rumrell
City officials voted incorrectly, said the owners’ attorney, Richard Rumrell of Rumrell Costabel Warrington & Brock in St. Augustine. Not only does the zoning allow rental housing in the neighborhood where the houses are located, but the code doesn’t specify the duration and frequency of rentals, he said.
“Municipalities are not allowed to enforce zoning codes the way they would like those codes to read; they must enforce the codes based on how they actually read,” Rumrell said.
The owners, who have public lodging and occupational licenses, purchased the properties “with the reasonable investment-backed expectation that they could rent ... without restriction on duration of rental,” according to the lawsuit.
The owners’ complaint could lead to a Bert J. Harris Private Property Rights Protection Act claim against the city “if damages continue against the owners’ private property rights,” Rumrell said.
The 1995 state law allows property owners to seek damages from public agencies if they show new regulations diminish property values.
Wilton Manors took zoning action after a complaint last year about parties and loud music from an unidentified neighbor of one of the properties.
In January, the city’s Planning & Zoning Board offered city officials three options on how to handle short-term rentals. All were rejected in favor of the outright ban, although the owners worked with city planners to craft an alternative policy over the last year.
Rumrell also represents 11 property owners in Venice, near Sarasota, in a pending vacation rental case almost identical to the one in Wilton Manors.
In 2006, the Venice zoning director restricted single-family rentals within a residential district to either one month or three rentals of less than 30 days per year, whichever amounts to the least number of days.
Property owners challenged the restriction, and last year Sarasota Circuit Judge Robert Bennett Jr. ruled against the city restriction.
Bennett concluded that unlimited temporary rentals are permitted in an area zoned for residential use.
“Zoning regulations [should be] construed broadly in favor of property owners absent a clear intent to the contrary,” he wrote.
The owners’ claim for damages, which could include the loss of rental income, still is pending.
Rumrell said he also has been contacted by Miami Beach property owners who are considering a lawsuit in the wake of a new city ordinance banning short-term rentals.
He declined to identify the owners because he has not yet been retained.
Miami Beach city commissioners in late February banned short-term rentals of less than six months in single-family neighborhoods. The ordinance took effect March 7.
The action came after years of debate and stemmed from a 2000 interpretation by Planning Director Jorge Gomez.
The new law is expected to spur action on a pending lawsuit by hospitality services company Villazzo LLC against the city, said Gary Held, the first assistant city attorney.
Villazzo offers short-term rentals of luxury homes worldwide to celebrities, sports figures and others who want to avoid the publicity resulting from a hotel stay.
Villazzo and the owner of a mansion at 10 Palm Ave. sued the city in 2007 after the company was cited for advertising the house as a short-term rental.
The suit was filed after Miami Beach officials approved a sweeping ban on all commercial uses of single-family homes early last year.
But the new short-term rental ban also applies.
The suit “was on hold for over a year due to mediation, but it has not been resolved because of the ordinance adopted, and we’ll be back in litigation shortly,” Held said.
Richard Freeman, Villazzo’s former attorney, referred calls to John Shubin of Shubin & Bass in Miami. He did not return a phone call seeking comment.
Jupiter Inlet Colony, a Palm Beach County community of about 250 single-family homes just south of Jupiter Island, sued the owners of three properties late last year for advertising their houses for short-term rentals.
The town bans businesses but does not prohibit short-term rentals, said Geoff Jones of Jeck Harris Raynor & Jones of Juno Beach, the owners’ attorney.
The town now is considering an ordinance that would ban vacation rentals. The case is pending.
______________________
The Issue
The attorney for 14 homeowners suing Wilton Manors over a ban on short-term rentals says the case could evolve into a Bert Harris claim if the city pursues alleged damages against the owners’ property rights. According to the suit, the owners had “reasonable investment-based expectations” when they bought their properties that they would be able to rent their houses without restrictions.
Here’s what that means:
- The Bert J. Harris Private Property Rights Protection Act of 1995 protects owners when government action like rezoning significantly affects an expected property use or value, decreasing its “investment-backed expectation.”
- If successful in their Bert Harris claim, property owners could expect payment for the loss to the site’s fair market value.
Terry Sheridan can be reached at (954) 468-2614.
2109 NW 2nd Ave. photo by Melanie Bell
Sunday, April 5, 2009
City to "Fence Off" Miami Beach
At Monday's Land Use Committee Meeting (4pm in City Manager's Large Conference Room at City Hall), the Committee will discuss "how to minimize the negative impacts of vacant properties".
This topic was added as an Addendum to the Agenda by Committee Chair and Commissioner Jonah Wolfson.
The Staff Report quotes statistics of the current volume of foreclosed and pre-foreclosed properties in zip codes 33139, 33140, and 33141. The data shows over 6,900 units are either bank owned or in pre-foreclosure status. The report points out that this number is anticipated to rise.
The report also states Code Compliance is experiencing three to four times the volume of property maintenance violations over last year. If the property is "abandoned" the City uses City funds to clean up the property and continue to maintain it while filing a lien on the property. When the property is sold, the City often recoups the costs of clean up and maintenance when the lien is paid. The payment of the lien goes into a fund used to clean up other properties which have been "abandoned".
The City is considering other measures to "address the issues resulting from abandoned/un-kept properties". Other measures include, administrative improvements, increased funding, and added legislation.
The additional legislation includes:
This topic was added as an Addendum to the Agenda by Committee Chair and Commissioner Jonah Wolfson.
The Staff Report quotes statistics of the current volume of foreclosed and pre-foreclosed properties in zip codes 33139, 33140, and 33141. The data shows over 6,900 units are either bank owned or in pre-foreclosure status. The report points out that this number is anticipated to rise.
The report also states Code Compliance is experiencing three to four times the volume of property maintenance violations over last year. If the property is "abandoned" the City uses City funds to clean up the property and continue to maintain it while filing a lien on the property. When the property is sold, the City often recoups the costs of clean up and maintenance when the lien is paid. The payment of the lien goes into a fund used to clean up other properties which have been "abandoned".
The City is considering other measures to "address the issues resulting from abandoned/un-kept properties". Other measures include, administrative improvements, increased funding, and added legislation.
The additional legislation includes:
- Amend Section 142-1132 (h) to require that all new construction projects place an eight (8) foot high fence around the perimeter of their construction sites; and provide minimum standards for the fence; including permitting chain link only if it is installed and maintained according to code with horizontal reinforcing bars and opaque screening. This amendment needs to be reconciled with Sec. 138-132 regarding construction signs and Sec. 58-300 (b) which includes construction sites that become abandoned site.
- Amend Section 142-1132 (h) (e) regarding temporary chain link fencing not to exceed a period of one year to be reconciled with other code amendments.
- Amend Section 58-299 to require the owners of vacant buildings, vacant structures and vacant or unimproved lots that have been received a property maintenance violation to place of a six (6) foot high fence with removable mesh to secure the vacant structure, vacant or unimproved lot, consistent with zoning restrictions on the placement of fences for that zoning district or use.
- Amend Section 58-300 (b) require a black or green removable mesh on the green or black vinyl-coated fence. It should be noted that the Planning Board is considering the possibility of requiring decorative graphics on fences for vacant lots and abandoned construction sites.
- Amend Section 58-301 (c) to allow the City to place a lien for city costs immediately following completion of the work performed by the City on behalf of the property owner.
- Amend Section 58-300 (b)(1) to reduce the number of days that a property owner is given to install the fence (with mesh), should that be required, from 45 days to 20 days.
- Amend Section 58-300 (b)(2) to reduce the number of days following a special master's determination that the property owner must install the fence with mesh from 30 days to 20 days.
- Amend Section 52-300 (c) to change the time frame for the City to place the fence should the property owner fail to do so from 45 days to 20 days.
- Amend Section 58-300 (d) to allow the City to place a lien for city costs immediately following completion fo the work performed by the City on behalf of the property owner.
- Amend the City Code to require that the City-approved "No Trespassing Signs" must be placed on all new construction projects/projects with substantial rehabilitation, and on abandoned properties that have received a violation for property maintenance.
- Amend City Cod to include additional aesthetic requirements for board ups, mesh on fences and graphics on vacant store fronts (Zoning to further define Aesthetic Requirements).
- Establish a building close-out process when a building is going to be left vacant for a period of more than three weeks.
- Amend City code to allow for higher administrative fees to be charged and included in liens when Code Compliance coordinates securing buildings pursuant to 58-301.
Friday, April 3, 2009
Will Special Master Become City's Rubber Stamp?
The City of Miami Beach's Land Use Committee, a Commission sub-committee, will meet Monday April 6th at 4:00pm (in the City Manager's Large Conference Room, 4th Floor, City Hall 1700 Convention Center Drive, Miami Beach) to consider an amendment to the City's Code "clarifying" the jurisdiction of the Special Master.
For example, if persons, aggrieved by an adjudication of guilt, realize there was no violation of the Land Development Regulations, per se, when they hosted a foreign exchange student in their home for 3 months, and wish to challenge the Planning Director's interpretation, used to issue a Code Violation, the persons aggrieved would have to appeal to the Board of Adjustment.
The City of Miami Beach has chosen to use Special Masters to preside over Code Enforcement hearings. If a person or property receives a Code Violation, he/she can appeal the violation to the Special Master. At the Special Master hearing, the City will present evidence against the person or property charged with the offense. The defendant can present evidence and/or testimony to rebut the City's allegations. Then, the Special Master, after evaluating the evidence and testimony, renders a verdict. These procedures are adopted in the City Code under Chapter 30.
Sec. 30-1. Intent.(a) It is the intent of this chapter to promote, protect and improve the health, safety and welfare of the citizens of the city and to provide an equitable, expeditious, effective and inexpensive method of enforcing codes and ordinances in force in the city where a pending or repeat violation exists or continues to exist. This chapter is enacted pursuant to the authority of F. S. ch. 162.
Sec. 30-2. Alternate code enforcement system created.The city creates, pursuant to F.S. ch. 162, an alternate code enforcement system that gives special masters appointed as set forth in articles II and III of this chapter the authority to hold hearings and impose fines, liens and other noncriminal penalties against violators of the city's or county's codes and ordinances.
The newly proposed ordinance would seek to add a section to the Code under Chapter 30-73.
The new section would read:
(b) The jurisdiction of the special masters shall not extend to appeals from or challenges to actions, decisions or interpretations by the building offical, planning director or fire marshal of the codes or ordinances within their jurisdiction, or claims that actions, decisions or interpretations of the City or its officials or employees are unconstitutional. This subsection shall not affect jurisdiction conferred upon the special masters by applicable law, which includes but is not limited to review of notices of violations of the City Code, and applicable building codes, land development regulations and fire codes.
The Staff Report for this item states that this section is added to clarify the jurisdiction of the Special Master, which is required due to recent challenges to Code Violations issued for violating certain administrative code interpretations.
However, after reviewing the Staff Report, the City's Code, Florida Statute 162, and other documents we conclude that this "clarification" will not achieve the objective.
The ordinance would not "clarify" the Special Master's jurisdiction, instead it would "indemnify" interpretations or actions by the Building Official, Planning Director, or Fire Marshall by creating "ambiguous powers of interpretation" which are then considered beyond reproach in Special Master hearings.
The ordinance reads: the special masters lack jurisdiction over "appeals from or challenges to interpretations or actions of the Building Official, Planning Director, and Fire Marshall."
To see how one property owner successfully challenged an interpretation of the Planning Director CLICK HERE.
If the City does not clarify "when" an interpretation or action by the Building Official, Planning Director, or Fire Marshall becomes enforceable as a Code, enforcement of an interpretation will still result in debate between the City Attorney and the person or his/her representative aggrieved by the Code Violation, at Special Master hearings.
The problem lies not with the Special Master's jurisdiction, but with the fact that administrative interpretations, subject to change, are not found in the Code, and thus the public is not afforded a reasonable opportunity to abide by them, or appeal them, prior to being issued a Code Violation. In some cases, the administrative interpretation might not even be written until after the Code Violation is issued.
However, in this proposed ordinance amendment, the origin of an interpretation is a moot subject. Once an administrative interpretation reaches the Special Master, the City Attorney will argue that a Special Master must abide by any administrative interpretation, regardless of its validity, under newly amended City Code Section 30-73. This "clarification of jurisdiction" ordinance thus grants broad "ambiguous powers of interpretation" to the Building Official, Planning Director, and Fire Marshall to create interpretations that could threaten your property rights. Thus, indemnifying the directors and employees.
The problem lies not with the Special Master's jurisdiction, but with the fact that administrative interpretations, subject to change, are not found in the Code, and thus the public is not afforded a reasonable opportunity to abide by them, or appeal them, prior to being issued a Code Violation. In some cases, the administrative interpretation might not even be written until after the Code Violation is issued.
However, in this proposed ordinance amendment, the origin of an interpretation is a moot subject. Once an administrative interpretation reaches the Special Master, the City Attorney will argue that a Special Master must abide by any administrative interpretation, regardless of its validity, under newly amended City Code Section 30-73. This "clarification of jurisdiction" ordinance thus grants broad "ambiguous powers of interpretation" to the Building Official, Planning Director, and Fire Marshall to create interpretations that could threaten your property rights. Thus, indemnifying the directors and employees.
For example, if persons, aggrieved by an adjudication of guilt, realize there was no violation of the Land Development Regulations, per se, when they hosted a foreign exchange student in their home for 3 months, and wish to challenge the Planning Director's interpretation, used to issue a Code Violation, the persons aggrieved would have to appeal to the Board of Adjustment.
Unfortunately, the same City Attorney that argued for adjudication of guilt in the Special Master hearing has the authority and obligation to determine whether or not the appeal will attach to the jurisdiction of the Board of Adjustment.
The ordinance, therefore, grants broad, unchecked, powers to the City Attorney to determine the authority of the Planning Director and his/her "ambiguous power of interpretation", now required to be enforced by the Special Master per City Code Section 30-73.
If the City Attorney wishes to block the appeal to the Board of Adjustment, to protect the Planning Director's interpretation, the City Attorney may block the appeal, and the person aggrieved by their adjudication of guilt will have to hire an attorney and appeal to a court of law in order to continue hosting the foreign exchange student.
The City Attorney's ability to approve or deny appeals to the Board of Adjustment is outlined in Section 118 of the Code.
Section 118-351 - Determination of JurisdictionAll variance requests shall be submitted to the City Attorney for a determination of whether the requested variance or administrative appeal is properly before the Board of Adjustment and whether it constitutes a change or amendment to these land development regulations. The jurisdiction of the Board of Adjustment shall not attach unless and until the Board has before it a written opinion from the City Attorney that the subject matter of the request is properly before the Board. The written recommendations of the Planning and Zoning Director shall be before the Board prior to its consideration of any matter before it. Comments from other departments, including, but not limited to, the public works department and the planning, design and historic preservation division, shall be incorporated into these recommendations.
Therefore, we urge you to consider this ordinance very seriously and request the City seek further clarification regarding the Building Official, Planning Director, and Fire Marshall's "ambiguous powers" to interpret Code which are, hereafter, to be "rubberstamped" by the Special Master.
If this matter affects you directly, we urge you to contact your Attorney.
For more information about Code Enforcement and Property Rights Issues: CLICK HERE
For more information about Code Enforcement and Property Rights Issues: CLICK HERE
Thursday, April 2, 2009
Founding Father's Statement For Government Protected Property Rights
"The moment the idea is admitted into society that property is not as sacred as the laws of God and that there is not a force of law and public justice to protect it anarchy and tyranny commence. If ‘Thou shalt not covet,’ and ‘Thou shalt not steal,’ were not commandments of heaven, they must be made inviolable precepts in every society before it can be civilized or made free." John Adams
Wednesday, April 1, 2009
Miami Dade Property Owner Wins Zoning Case
Denial of Zoning Amendment Constituted Reverse Spot Zoning
as seen on Law of the Land
Petitioner sought a zoning change for a parcel of undeveloped property in southwest Miami-Dade County from AU (agricultural zoning permitting one residence per five acres) to EU-1 (estate zoning permitting one residence per one acre).
The Miami-Dade County Commission denied the zoning change and the circuit court appellate division, on first-tier certiorari review, upheld the decision of the County Commission. On second-tier certiorari review, the Third DCA quashed the decision of the circuit court and remanded with directions to quash the zoning resolutions in question. The court held that the circuit court departed from the essential requirements of the law under the legal construct of reverse spot zoning.
First, the court stated that there was indisputable evidence “that (a) the previous agricultural nature of the area no longer prevails, so that (b) the surrounding property is now used as permitted either by EU-1 or, if anything, even more liberal zoning.” Specifically, the court pointed to a dialogue by a county commissioner and the planning director, in which the planning director admitted that all but one parcel surrounding the subject property were zoned EU-1.
Second, it was determined through evidence presented at the hearing that the Petitioner’s application was rejected on grounds that to add development on the subject parcel would present flooding issues in the neighborhood, and that the subject property was important as a drainage facility for excess water from surrounding properties. “The Petitioner’s property was thus forced to act, … as an uncompensated storm sewer for the neighborhood.
As a matter of constitutional law, however, a policy such as this one, which is unrelated to appropriate zoning principles, cannot support the action below.” The court concluded that while good drainage is a worthy public goal, “it emphatically may not be promoted on the back of a private landowner by depriving him of the constitutionally protected use of his property.”
Richard Road Estates, LLC v. Miami-Dade County Bd. of County Com’rs, 2009 WL 454537 (Fla. 3d DCA 2/25/2009).
The opinion can be accessed at: http://www.3dca.flcourts.org/Opinions/3D08-1400.pdf
Special thanks to Steven Wernick of Bilzin Sumberg Baena Price & Axelrod LLP for providing this abstract.
as seen on Law of the Land
Petitioner sought a zoning change for a parcel of undeveloped property in southwest Miami-Dade County from AU (agricultural zoning permitting one residence per five acres) to EU-1 (estate zoning permitting one residence per one acre).
The Miami-Dade County Commission denied the zoning change and the circuit court appellate division, on first-tier certiorari review, upheld the decision of the County Commission. On second-tier certiorari review, the Third DCA quashed the decision of the circuit court and remanded with directions to quash the zoning resolutions in question. The court held that the circuit court departed from the essential requirements of the law under the legal construct of reverse spot zoning.
First, the court stated that there was indisputable evidence “that (a) the previous agricultural nature of the area no longer prevails, so that (b) the surrounding property is now used as permitted either by EU-1 or, if anything, even more liberal zoning.” Specifically, the court pointed to a dialogue by a county commissioner and the planning director, in which the planning director admitted that all but one parcel surrounding the subject property were zoned EU-1.
Second, it was determined through evidence presented at the hearing that the Petitioner’s application was rejected on grounds that to add development on the subject parcel would present flooding issues in the neighborhood, and that the subject property was important as a drainage facility for excess water from surrounding properties. “The Petitioner’s property was thus forced to act, … as an uncompensated storm sewer for the neighborhood.
As a matter of constitutional law, however, a policy such as this one, which is unrelated to appropriate zoning principles, cannot support the action below.” The court concluded that while good drainage is a worthy public goal, “it emphatically may not be promoted on the back of a private landowner by depriving him of the constitutionally protected use of his property.”
Richard Road Estates, LLC v. Miami-Dade County Bd. of County Com’rs, 2009 WL 454537 (Fla. 3d DCA 2/25/2009).
The opinion can be accessed at: http://www.3dca.flcourts.org/Opinions/3D08-1400.pdf
Special thanks to Steven Wernick of Bilzin Sumberg Baena Price & Axelrod LLP for providing this abstract.
Recycling Manditory in Condos and Apartments
Recycling for Condos and Apartments (Eight units or more)
as seen on http://web.miamibeachfl.gov/scroll.aspx?id=43564
Now, every resident in Miami Beach can recycle. If you live in an apartment or condo with more than eight units, your contracted building waste hauler is required by City Code to provide a recycling service to your building by April 1, 2009.*
Recycling reduces the total amount of solid waste that any building generates and can save you money, too. Miami Beach City Code requires that each waste hauler identify savings in solid waste disposal costs of recycling and pass it on to your building.
Contracting for Recycling Services
Negotiation of actual contract terms for recycling services is between your building owner and the contracted waste hauler. The recycling offered to buildings must be in a manner that is a specific fit for each building, since not all buildings have the same space or access available. When a waste hauler submits a recycling proposal to a building, it will need to specify the cost, the nature of the service to be provided, and most importantly, the cost savings.
Building owners do not have to accept their waste hauler’s offer to perform recycling and can find other licensed providers for the service. Once an offer has been made to a building, the contracted waste hauler’s obligation under the City Code is fulfilled.
However, if the offer is not accepted by a building (by the owner or the association), the City must be notified by the waste hauler that recycling services are not being provided to the building.
Appeal Process
In the event that a recycling offer is deemed unfair, building owners can file a written appeal to the Miami Beach City Manager’s Office within 30 days of receiving the recycling service offer by stating the basis for the appeal. A ruling is made by the City Manager after a hearing process.
WasteFull Weekends
As an added recycling option to you, single-stream recycling services is now available during WasteFull Weekends at the North Beach location. Single-stream recycling allows all recyclable materials to be placed in one container (no more separating bottles, cans and newspapers). WasteFull Weekend recycling (including electronics) is available on the first weekend of every month at the 75 Street and Dickens Avenue dumpster location. WasteFull Weekends also accepts bulk trash at its two dumpster locations: 6 Street and Meridian Avenue (South Beach) and 75 Street and Dickens Avenue (North Beach).
Contact
For more information on recycling, contact your individual waste hauler or the Miami Beach Public Works Department, Sanitation Division, 305.673.7616, or Miami-Dade County Division of Solid Waste at 3-1-1.
Let’s keep Miami Beach clean and “green”!
* Apartments and condos with eight units or less are serviced through the County’s curbside single-stream recycling program.
as seen on http://web.miamibeachfl.gov/scroll.aspx?id=43564
Now, every resident in Miami Beach can recycle. If you live in an apartment or condo with more than eight units, your contracted building waste hauler is required by City Code to provide a recycling service to your building by April 1, 2009.*
Recycling reduces the total amount of solid waste that any building generates and can save you money, too. Miami Beach City Code requires that each waste hauler identify savings in solid waste disposal costs of recycling and pass it on to your building.
Contracting for Recycling Services
Negotiation of actual contract terms for recycling services is between your building owner and the contracted waste hauler. The recycling offered to buildings must be in a manner that is a specific fit for each building, since not all buildings have the same space or access available. When a waste hauler submits a recycling proposal to a building, it will need to specify the cost, the nature of the service to be provided, and most importantly, the cost savings.
Building owners do not have to accept their waste hauler’s offer to perform recycling and can find other licensed providers for the service. Once an offer has been made to a building, the contracted waste hauler’s obligation under the City Code is fulfilled.
However, if the offer is not accepted by a building (by the owner or the association), the City must be notified by the waste hauler that recycling services are not being provided to the building.
Appeal Process
In the event that a recycling offer is deemed unfair, building owners can file a written appeal to the Miami Beach City Manager’s Office within 30 days of receiving the recycling service offer by stating the basis for the appeal. A ruling is made by the City Manager after a hearing process.
WasteFull Weekends
As an added recycling option to you, single-stream recycling services is now available during WasteFull Weekends at the North Beach location. Single-stream recycling allows all recyclable materials to be placed in one container (no more separating bottles, cans and newspapers). WasteFull Weekend recycling (including electronics) is available on the first weekend of every month at the 75 Street and Dickens Avenue dumpster location. WasteFull Weekends also accepts bulk trash at its two dumpster locations: 6 Street and Meridian Avenue (South Beach) and 75 Street and Dickens Avenue (North Beach).
Contact
For more information on recycling, contact your individual waste hauler or the Miami Beach Public Works Department, Sanitation Division, 305.673.7616, or Miami-Dade County Division of Solid Waste at 3-1-1.
Let’s keep Miami Beach clean and “green”!
* Apartments and condos with eight units or less are serviced through the County’s curbside single-stream recycling program.
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About Us
- Miami Beach Property Rights
- We are a grass-roots coalition of property owners dedicated to protecting the rights of property owners in Miami Beach, Florida. If your property rights are being threatened we want to hear from you. This website is intended for informational purposes only, reflects various opinions of our members, and is not intended as legal advice. Do not rely on the opinions or information stated herein as legal advice.
