|
IN THIS ISSUE:
Legal Updates | Team Member Spotlight | Recognition | News Updates | Meet the Team
| |
|
RR 1 Dev., LLC v. Miami-Dade Cnty. Dep't of Regul. & Econ. Res., No. 2023-60-AP-01, 2024 WL 3161010 (Fla. Cir. Ct. June 25, 2024)
For Code Enforcement Compliance, Future Land Use Designation is
Distinguishable from Zoning Restrictions
RR 1 Developer, LLC, appealed a hearing officer’s affirmation of 47 code citations alleging impermissible use of its property to park certain vehicles. All parties agree that, at the time of the citations, the property was zoned IU-1 (industrial use), and that the appellant’s use of the property to store vehicles was permitted in the IU-1 zoning district. However, the Miami-Dade County Comprehensive Development Master Plan (CDMP) designates the property “agricultural.” The County claimed, and the hearing officer concurred, that as a result of the CDMP designation, ordinances governing properties zoned AU (agricultural use) were applicable to the property. Appellant’s use of the property is not permitted in the AU zoning district. The Circuit Court, sitting in its appellate capacity, quashed the citations and, citing to multiple District Courts of Appeal decisions, held that a comprehensive plan only directs future use and development of property and, without more, does nothing to change the zoning or land use regulations that apply to a parcel.
| |
|
Vazquez v. City of Hallandale Beach, 391 So. 3d 439 (Fla. 4th DCA 2024)
Local Governments Are Not Bound by Their Own Restrictive Covenants
When Violated for a Public Purpose
Relying on Florida Supreme Court precedent, the Fourth District Court of Appeal affirmed the lower court’s dismissal of a class action seeking an injunction against the City of Hallandale Beach’s construction of a marina and parking lot in violation of a restrictive covenant. The City acquired the land for the project via eminent domain and case law is clear that land acquired by a public entity in this manner is not burdened by restrictive covenants; nor are restrictive covenants a property right compensable when destroyed for public use via eminent domain. However, as Chief Judge Klingensmith pointed out in a concurring opinion, the restrictive covenant violated by the marina and parking lot was part of a settlement agreement to which the City was a party. In this way, the City benefited both by creating the restrictive covenant and by violating it without repercussion. “[I]n my view, both private and public parties should be held to the agreements which they freely enter. While a covenant may not have value when a municipal entity acquires property with one attached pursuant to a third-party agreement, I think such restrictions have compensable value in those cases where the entity itself was a party to the restrictions’ creation.” Klingensmith’s concurrence stated such an exception would have to be created by the Florida Supreme Court, as it does not exist in precedent. In a separate concurrence, Judge Gross opined that the principle of sovereign immunity allows the government to avoid restrictive covenants for public benefit, and the covenant at issue did not expressly waive that power.
| |
|
Buending v. Town of Redington Beach, No. 8:19-CV-1473-VMC-SPF, 2024 WL 3755807 (M.D. Fla. Aug. 12, 2024).
Witnesses Testify to Public Use of Beach for Recreation for 70+ Years,
Establishing Customary Use of Dry Sand Beach
Beachfront property owners were defeated in their takings case against the Town of Redington Beach challenging an ordinance that guaranteed public access to and use of dry sand beaches for recreational purposes, despite lot lines of privately held properties extending to the mean high water line. The ordinance states, “the public’s long-standing customary use of the dry sand areas of all of the beaches in the town for recreational purposes is hereby recognized and protected” and it lists traditional beach activities that shall not be “impeded or interfered with.” Beachfront property owners alleged the ordinance constituted a facial and as applied taking, depriving them of the right to exclude others from their privately held property and denying compensation for the same. The Town asserted the doctrine of “customary use,” part of the common law in Florida since 1974 and enshrined in statute (Section 163.035, F.S.) since 2018, as an affirmative defense. The Court found that the Town satisfied its burden of proof by demonstrating, by a preponderance of the evidence, that the public’s use of the beach was “ancient, reasonable, without interruption and free from dispute.” To make this showing, the Town put forth “extensive and consistent” witness testimony, including a historian, regarding use of the beach for recreation by residents and visitors during the previous seventy years, as well as the lack of interference from property owners when engaging in the activities protected by the ordinance, including sitting on the beach, picnicking, building sandcastles, etc.
| |
|
Kimberly Regenesis, LLC v. Lee Cnty., No. 2:19-CV-538-SPC-NPM, 2024 WL 3103451 (M.D. Fla. June 24, 2024).
Summary Judgment Denied in ADA Challenge to
Rezoning Denial for Substance Abuse Treatment Center
In 2014, Plaintiff requested to rezone its property from Agricultural (AG-2) to Community Facilities Planned Development (CFPD) to allow construction of a 72-bed substance abuse treatment center. The Board of County Commissioners (BOCC) denied the rezoning as “potentially destructive of the character and integrity of the residential neighborhood environment.” During litigation of that denial, Plaintiff changed tactics and instead requested the County make reasonable accommodation under the Americans with Disabilities Act (ADA) that would allow the facility to move forward. According to the Plaintiff, people in recovery from drug and alcohol addiction are a protected class under the ADA and therefore, Plaintiff requested accommodation in the form of (1) the proposed use being treated as permitted in the existing zoning category; or (2) the property be rezoned to CFPD and the use be treated as permitted. The County rejected both options as unreasonable and Plaintiff brought action under the ADA for declaratory and injunctive relief alleging the County (1) intentionally discriminated against the proposed patients when the rezoning request was denied and (2) failed to provide a reasonable accommodation. The County moved for summary judgment on the grounds of standing, mootness, and res judicata/collateral estoppel. The Court rejected each of these arguments. According to the Court, the Plaintiff had individual standing – having suffered an injury (not being able to construct and operate the proposed business) that was traceable to Defendant’s actions (denying the rezoning), that could be addressed by the instant action – and associational standing as a party “in the zone of interests” protected by the ADA. Further, the Court held the case was not mooted by a change in the majority of the seats on the BOCC because vocal opponents remained on the board, and discriminatory motive was not an element of the failure to accommodate claim; therefore, there was no certainty the result would be different if voted on today. In addition, the Court determined the state court litigation of the rezoning did not bar the case via res judicata or collateral estoppel because it did not examine the related ADA claims. The Court also denied Plaintiff’s motion for summary judgment regarding the second claim, stating that evidence needs to be developed regarding the reasonableness and necessity of the proposed accommodation.
| |
Please join us in welcoming two new members to our team! | |
|
Patrice Boyes
Tampa
Shareholder
813-222-5025
Email | View Bio
| |
|
Patrice's Practice: Patrice has more than three decades of experience representing property owners, institutional clients, business owners and local governments in state court and administrative hearings regarding land use and environmental matters. She manages teams of diverse legal and expert consultants to develop strategic solutions to complex permitting and economic development matters. Patrice is experienced in conceptualizing and executing paths for securing approvals, including matters involving environmental issues. She has overseen numerous transformative mid-rise projects in an urbanizing college town, and secured approval of the largest mixed-use development ever approved in Alachua County.
Patrice also serves as a Florida Supreme Court Certified Circuit & Appellate Court Mediator and is highly skilled in mediation, facilitation and negotiation regarding complex legal problems that require creative resolutions. She also serves as a Special Magistrate under the Florida Land Use and Environmental Dispute Resolution Act (§ 70.51).
| |
|
Amy McPherson
Tampa
Shareholder
813-222-5055
Email | View Bio
| |
|
Amy's Practice: Amy represents clients in a variety of multifaceted land use permitting and entitlement issues. She guides clients from the initial phases of development, through the public hearing approval process, throughout the permitting process, and in litigation. Amy also has experience working with federal and state agencies on environmental permitting matters.
For nearly two decades Amy practiced in South Florida, and successfully secured development approvals for various large-scale projects, including shopping center redevelopments, educational and religious institutions, and residential and commercial developments. Prior to joining the firm, Amy maintained her own practice in Dunedin, Florida servicing clients throughout Pinellas County.
| |
RECENT STEARNS WEAVER MILLER UPDATES | |
-
9/10/24: Hurricanes, Flash Floods, and Tornadoes – Development Permit Extension Opportunities Are Now Available
-
8/22/24: What's Developing | Summer 2024
-
8/15/24: Florida Attorney General’s Office Issues Informal Opinion Clarifying Zoning Districts that Qualify for Development under the Live Local Act
-
4/2/24: Legislative Tax Package includes Live Local Property Tax Exemption Opt-out Provisions for Taxing Authorities
| |
|
*Ken Metcalf, David Smith, Cynthia Spidell, Chris Smith, Shawn Halphen, and Anastasia Barnes are not attorneys and are not authorized to practice law.
Ken, David, Cynthia and Anastasia are highly experienced planners. Ken and Cynthia are AICP certified.
Chris and Shawn are highly experienced GIS analysts.
| |
The information provided in this email does not, and is not intended to, constitute legal advice; instead, all information in this email is for informational purposes only. Information in this email is general in nature and may not constitute the most up-to-date legal or other information. Readers of this email should contact us or an attorney of their choice to obtain advice with respect to any particular legal matter. No reader of this email should act or refrain from acting on the basis of information in this email without first seeking legal advice from counsel. Only your individual attorney can provide assurances that the information contained herein – and your interpretation of it – is applicable or appropriate to your particular situation. This email does not create an attorney-client relationship between the reader and the authors of the email or this law firm. | |
|
About Stearns Weaver Miller
Stearns Weaver Miller is a Florida-based law firm with more than 150 attorneys and offices in Miami, Coral Gables, Fort Lauderdale, Tampa and Tallahassee. For over 40 years, our multidisciplinary team of attorneys and professionals have worked collaboratively to help our clients understand and resolve complex legal issues and disputes. For more information, please visit stearnsweaver.com.
| | | | |
