MORNINGSIDE DEVELOPMENT, LLC vs. CITY OF MIAMI and  MORNINGSIDE CIVIC ASSOCIATION, INC,

IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA

                                                                        APPELLATE DIVISION

                                                                        Case No. 05-186 AP

                                                                          Lower Tribunal Resolution No. R-05-0155

MORNINGSIDE DEVELOPMENT, LLC

            Petitioner,

vs.

CITY OF MIAMI, a Florida Municipal

Corporation, MORNINGSIDE CIVIC

ASSOCIATION, INC, a Florida Municipal

Corporation, ROD ALONSO, RON STEBBINS,

SCOTT CRAWFORD and ELVIS CRUZ

            Respondents.

_______________________________/

CITY OF MIAMI’S RESPONSE TO PETITION FOR WRIT OF CERTIORARI

City of Miami, (“Respondent”) responds to the Petition for Writ of Certiorari (‘Petition”) filed by Morningside Development, LLC (“Petitioners” or “Petitioner”).

STATEMENT OF THE FACTS

            The Property consists of two adjacent parcels of land located at 5301 and 5501 Biscayne Boulevard, Miami, Florida. (A.6)[1]  The zoning of the Property is O[2] with a strip along the eastern side in the R-1[3] zone. (A.6)

A property owner in this district is required to obtain a Class II Special Permit before commencing any new construction.  Per the SD-9 district requirements, Petitioner filed an application for a Class II Special permit with the Miami Zoning Department regarding the development of two mixed-use buildings. (A.666)

On April 29, 2004, Respondent adopted the first of two amendments to the SD-9 district. (A.653-A.660A)  This first amendment which would become operational 30 days after adopted, Ordinance Number 12530, imposed a 95 foot height restriction for new residential development in the SD-9 district. (A.656)  Furthermore, on May 10, 2004, Respondent enacted a moratorium that delayed Respondents acceptance of any application for development within the SD-9 district for 90 days until the 95 foot height restriction ordinance had taken effect. (A.668)  On May 3, 2004, Petitioner submitted its application to the Planning Director. (A.666)  On May 8, 2004, the City of Miami Zoning Department notified Petitioner that the application contained an error and required a minor correction. (A.667)  Petitioner provided the applications with the requested corrections on May 14, 2004. (A.672)  On June 16, 2004, the City’s Chief of Land Development sent a letter to Petitioner stating that Petitioner’s application was being returned because the application had been accepted in error. (A.672)  Because Petitioner submitted his application 4 days after the moratorium deadline; Petitioner is now subject to the new SD-9 95 foot height restriction ordinance. (A.672)  Because Petitioner now fell under the new SD-9 95 foot height restriction ordinance, it reduced its building heights to 92 feet. (A.174)

            On September 27, 2004, Respondent enacted its second SD-9 amendment, Ordinance Number 12594. (A.661)  Under this second amendment, the height of any garage structure bordering an R-1 district is limited to 25 feet in height and a roof angle of 45 degrees upward from the wall also limits the height of the building. (A.661)  On October 27, 2004, the Planning Director granted to Petitioner its Class II Special Permit. (A.152)

            On November 10, 2004 the Association filed an appeal with the Zoning Board claiming that the Director of Planning improperly issued Petitioner’s permit. (A.14)  The Association claimed that Petitioner’s project did not comply with the character of the neighborhood under §1305 of the Miami Zoning Ordinance. (A.14)  On December 13, 2004, the Miami Zoning Board heard the appeal and denied Association appeal and affirmed the Planning Director granting of Petitioner’s permit. (A.146)  On December 22, 2004, the Association requested that the Miami City Commission review the Zoning Boards decision which denied the Associations appeal and affirmed the Planning Director granting of Petitioner’s permit. (A. 144) On March 10, 2005, the Miami City Commission reversed the Zoning Boards decision and granted Respondent’s appeal. (A. 377)

ARGUMENT

The Standard of Review is the three-prong test set forth in City of Deerfield Beach v. Vaillant, 419 So. 2d 624 (Fla. 1982). Board of County Commissioners of Brevard County v. Snyder, 627 So. 2d 469 (Fla. 1993).  On certiorari review of local government’s quasi-judicial decision, the court must determine: 1) whether the administrative tribunal accorded due process of law; 2) whether the administrative tribunal applied the correct law; and 3) whether the decision of the administrative tribunal is supported by competent substantial evidence. Id. at 625.

1. Respondent afforded Petitioner due process of law.

            The Respondent has not deviated from the essential requirements of law nor has the Respondent deprived the Petitioner of due process of law.  “A Quasi –judicial hearing generally meets due process requirements if parties are provided notice of hearing and opportunity to be heard.  In quasi-judicial zoning proceedings, parties must also be able to present evidence, cross-examine witnesses, and be informed of all facts upon which the commission acts.” Jennings v. Dade County, 589 So.2d 1337 (Fla. 3^rd DCA 1991) at 1341.  In this case, the Petitioner was provided notice of hearing and opportunity to be heard at the City Commission meeting.  The Petitioner was also provided with the opportunity to present evidence, cross-examine witnesses, and be informed of all facts upon which the commission acts.  Because of the foregoing, the Respondent has afforded Petitioner due process of law.

2. Respondent has applied the correct law.

Respondent applied the correct law when it granted the Association’s appeal and reversed the Zoning Board’s earlier decision.  Specifically, Petitioner’s claim that Respondent departed from essential requirements of law should be denied for the following reasons: A) By direct analogy and favorable comparison, Petitoner has failed to meet all of the necessary requirements in order to obtain a Class II Special Permit; B) Petitioner’s right to his or her property is not absolute; C) Petitioner did not timely complete and submit its application therefore is subject to the SD-9 Zoning Ordinance amendment; D) Assuming arguendo that Petitioner did satisfy all of the SD-9 requirements[4], the application should still be subject to Respondent’s final decision because Petitioner had constructive notice of a potential zoning height and setback change therefore had no vested right to rely on the earlier zoning ordinance. E) The Miami City Commission did not depart from the essential requirements of law by conducting a De Novo Evidentiary Hearing.

A)        By direct analogy and favorable comparison, Petitoner has failed to meet all of the necessary requirements in order to obtain a Class II Special Permit

Petitioner has failed to meet the requisite elements necessary to obtain a Class II Special Permit.  For that reason, City Commission’s final decision that granted respondents appeal and reversed the Miami Zoning Board decision, must be affirmed.  By direct analogy and favorable comparison, we are comparing the granting of a Class II Special Permit, to the granting of a Special Exception.

Pursuant to Florida law, an applicant seeking a special exception needs to demonstrate to the decision-making body that: (1) its proposal is consistent with the county's land use plan; (2) the uses are specifically authorized as special exceptions and unusual uses in the zoning district; and (3) the requests meet with the applicable zoning code standards of review. Baker v. Metropolitan Dade County, 774 So.2d 14 (Fla. 3^rd DCA 2000) In First Baptist Church of Perrine v. Miami-Dade County, 768 So.2d 1114 (Fla. 3^rd DCA 2000) the court held that a traffic study of a church that applied for a special exception to expand its school was invalid and thus the church failed to meet the zoning criteria requiring consideration of neighborhood traffic impact.  Furthermore, in Florida Min. & Materials Corp. v. City of Port Orange, 518 So.2d 311 (Fla. 5^th DCA 1987), the court concluded that there was sufficient competent evidence to support the denial of an application for a special exception where the record showed that the proposed apartments were incompatible in style with any of the other buildings in the area, and the size of the proposed apartments were such that their construction would have a detrimental effect on the property values in the neighborhood.

After reading the above mentioned cases it becomes obvious that in order for an applicant to be granted a “Special Exception,” the applicant must meet all of the specified requirements.  Class II Special Permits are in essence, Special Exceptions. Specifically, §2502 of the Miami Zoning Ordinance defines a “Special Exception” as a:

“special permit for a use that would not be appropriate generally or without restriction throughout a zoning district but which, if controlled as to number, area location or relation to the neighborhood, and having such conditions attached which would eliminate or adequately mitigate any adverse impacts would promote the public health, safety or welfare. Such uses may be permissible as a special exception.”

Because a Class II Special Permit is in the nature of a Special Exception, through direct analogy and favorable comparison, we respectfully request this court apply to Class II Special Permits the same requirements imposed on Special Exceptions. Specifically, §1305.2 of the Miami Zoning Ordinance which allows the reviewing agency to consider factors such as size, scale, bulk and compatibility with the surrounding neighborhood when determining whether or not to issue a Class II Special Permit. §1305.2 of the Miami Zoning Ordinance states:

As appropriate to the nature of the special permit involved and the particular circumstances of the case, the following considerations and design criteria as specified on the following table shall apply to issues related to design, character and compatibility of the proposed application in addition to any other specific consideration(s) set forth elsewhere in this zoning ordinance, the City Code, or any other applicable regulation(s).

The basic rules of statutory construction are also applicable to municipal ordinances.  That is, statutes and ordinances should be given their plain meaning. Rinker Materials Corp. v. City of North Miami, 286 So. 2d 552, (Fla. 1973)  The Florida Supreme Court in Rinker Materials Corp. v. City of North Miami stated that “Where words used in ordinance, when considered in their ordinary and grammatical sense, clearly express legislative intent, other rules of construction and interpretation are unnecessary and unwarranted.” Id. at 553.  That same court further stated that “Intent of city commission in enacting zoning ordinances is to be determined primarily from language of ordinance itself and not from conjecture.” Id. at 553.

Therefore, after directly interpreting the clear and unambiguous language of §1305.2 of the Miami Zoning Ordinance, one can reasonably conclude that Respondent has the authority to consider certain principles when determining whether or not to issue a Class II Special Permit.  Specifically, respondent has the vested right to consider factors such as size, scale, bulk and compatibility with the surrounding neighborhood when determining whether or not to issue such a permit.

With this specific case, even though Petitioner argues that it should be grandfathered from Respondent’s height restrictions, Petitioner is not grandfathered from complying with §1305.2 of the Miami Zoning Ordinance.  In this case, the court must hold that Petitioner has failed to meet the requisite elements necessary to obtain a Class II Special Permit.  For that reason, City Commission’s final decision that granted respondents appeal and reversed the Miami Zoning Board decision, must be affirmed.

B)        Petitioner’s right to his or her property is not absolute

Courts have consistently found that regulations are a taking only if they preclude all or virtually all economically viable uses of one’s own property.  Agins v. City of Tiburon, 447 U.S. 255 (1980)  Because an owner is not guaranteed the most profitable use of his land, but simply some use that can be economically carried out, an action which "down-zones" land or increases legitimate restrictions is not invalid simply because it denies the highest and best use of the property.  Penn. Cent. Transp. Co. v. City of New York, 438 U.S. 104 (1978)  As 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 (Fla. 2^nd DCA 1990)  In determining whether a development restriction denies a landowner the economical use of his or her property, the landowner must show that there is no available beneficial use of his or her property under the land use ordinance in question. Glisson v. Alachua County, 558 So.2d 1030 (Fla. 1^st DCA 1990)

The burden of proving that one is being deprived of using their own property is a high one.  And in this case, the Petitioner has simply failed to meet it.  The granting of Respondents appeal and reversing of the Zoning Board decision in no way, shape or form prevents the development of Petitioner’s project.  The decision of the City Commission is simply limiting the height of Petitioner’s project to a height that is compatible and harmonious with the surrounding neighborhood.  No where in the City Commission’s decision to limit the height of the building does it mention that the Petitioner cannot develop his project.  To the contrary, Petitioner’s project can be built, but its height is limited to a height that will not disrupt the integrity of the surrounding neighborhood.  Per the foregoing analysis, because Petitioner will still receive some “economically viable use” of his property, its right to use its property has not been violated.

C)        Petitioner did not timely complete and submit its application therefore is subject to the SD-9 Zoning Ordinance amendment

            As stated in the facts, on April 29, 2004, Respondent adopted an ordinance that imposed a 95 feet maximum height restriction on the SD-9 District.  Furthermore, on May, 10 2004, Respondent enacted a moratorium delaying the City’s acceptance of any application for SD-9 development for 90 days until the new 95 feet height ordinance was in effect.  Petitioner submitted its application on May 8, 2004, therefore was within the May 10^th deadline.  However, there was an error in Petitioner’s application therefore Respondent returned the application to Petitioner so that the proper corrections could be made.  Petitioner did not return this corrected application until May 14, 2004.  Therefore as a matter of law[5], Petitioner did not submit its application in a timely fashion and failed to meet the May 10^th deadline.  For that reason, Petitioner is subject to the 95 feet maximum height restriction imposed by the amended SD-9 ordinance.

D)        Assuming arguendo that Petitioner did satisfy all of the SD-9 requirements[6], the application should still be subject to Respondent’s final decision because Petitioner had constructive notice of a potential zoning height and setback change therefore had no vested right to rely on the earlier zoning ordinance.

In Florida, a permittee who was aware before obtaining his building permit that the municipality was in the process of rezoning his property may not acquire vested rights under such permit. Sharrow v Dania, 83 So 2d 274 (Fla. 1955)  In Sharrow, Id., the court held that landowners who were found to have had adequate forewarning of a pending ordinance requiring a 6-foot building setback when they applied for and received a building permit were held not entitled to rely on the doctrine of equitable estoppel in an action brought to prevent the revocation of their building permit.

Per the facts of this case, Petitioner was well aware of the pending legislation.  The record clearly shows that there was sufficient public notice regarding the amendments to SD-9.  The ordinance adopted on April 29, 2004, which imposed the 95 feet maximum height restriction was first brought up during the February 26, 2004, City Commission Hearing and again on the April 29, 2004, City Commission Hearing.  Furthermore, throughout the application process, petitioner was advised and placed on notice that the law regarding the maximum height restrictions was changing.  Specifically, on April 30, 2004, Petitioner was made aware in writing that height restrictions may apply as per the moratorium and new height restricting ordinance[7].

Therefore because Petitioner was placed on notice that the law regarding the maximum height restrictions could potentially change, Petitioner never acquired a vested interest in the earlier zoning ordinance.  Because of this, Petitioner is not entitled to rely on the application that it filed before the application deadline and is subject to the building height restrictions imposed by Respondent.

E)        The Miami City Commission did not depart from the essential requirements of law by conducting a De Novo Evidentiary Hearing.  

Petitioner claims that Respondent departed from the essential requirements of law by conducting a de novo evidentiary hearing.  The City disagrees with Petitioner’s claim and concludes that section §2004 of the Miami Zoning Ordinance allows a de novo evidentiary hearing upon appeal to the City Commission.

§2004 of the Miami Zoning Ordinance states that “The City Commission on review shall have the power to affirm, reverse or modify the action of the zoning board.” Nowhere in §2004 does it mention that the City Commission’s scope of review is limited to evidence that was before the Zoning Board.  On the other hand, Rule 9.190(c) (4) of the Florida Rules of Appellate Procedure states that:

In proceedings seeking review of administrative action not governed by the Administrative Procedure Act, the clerk of the lower tribunal shall not be required to prepare a record or record index. The petitioner or appellant shall submit an appendix in accordance with rule 9.220. Supplemental appendices may be submitted by any party. Appendices may not contain any matter not made part of the record in the lower tribunal.

If the intent of §2004[8] was to limit appellate review to the lower tribunal’s record, it would have been expressly stated just as Rule 9.190(c) (4)[9] did.  When reading the express language of Rule 9.190(c) (4)[10], it is evident that the intent of Rule 9.190(c) (4)[11] is to limit the scope of review to the record of the lower tribunal.  Therefore, because §2004[12] does not expressly state that its scope of review is limited to the Zoning Board’s record, this court must conclude that the appropriate standard of review is a de novo review.

Additionally, Florida Courts have upheld zoning ordinances that expressly provide for de novo review. See Metropolitan Dade County v. Reineng Corp., 399 So.2d 379 (Fla. 3^rd DCA 1981); Drage- Grothe v. Lake Jessamine Property Owners Association, 304 So. 2d 504 (Fla. 4^th DCA 1975); Lee v. St. Johns County Board of Commissioners, 776 So.2d 1110 (Fla. 5^th DCA 2001).  In Metropolitan Dade County v. Reineng Corp, Supra., the court upheld Article XXXVI, Section 33-313 of the Metropolitan Dade County Code which provides for a de novo hearing upon appeal from the Zoning Appeals Board to the County Commission.  In Drage- Grothe v. Lake Jessamine Property Owners Association, Supra, the court upheld a zoning statute that stated that:

The Board of County Commissioners shall conduct a trial de novo hearing upon any appeal taken from the Ruling of the planning and zoning commission or board of zoning adjustment And hear the testimony of witnesses and other evidence offered by the aggrieved person and interested parties to the appeal And may in conformity with this act and the zoning resolutions, rules and regulations adopted there under, Reverse, or affirm, wholly or partly, or may modify the order, requirement, decision, or determination of the board of zoning adjustment or Recommendation of the planning and zoning commission.

Yes, the zoning ordinances in Metropolitan Dade County[13], Drage- Grothe[14] and Lee[15] are different than the one in question in the sense that they expressly provide for a de novo hearing.  However, there is clearly a pattern in the 3^rd, 4^th and 5^th districts that a de novo standard of review is the commonly used and correct standard of review used by a reviewing commission.  Therefore, we respectfully request this court apply the de novo standard of review to the case at hand.

Furthermore, assuming arguendo that a de novo standard of review does not apply, Petitioner has waived its right to bring this claim because it failed to raise it in the City Commission Hearing.  When one appeals a decision, the time for introducing new record evidence has long elapsed, and no new evidence may be introduced for the first time on appeal. Metropolis Publishing Co. v. City of Miami, 129 So. 913 (Fla. 1930); Miami-Dade County v. Omnipoint, 863 So.2d 195 (Fla. 2003); State v. Charles, 827 So.2d 1107 (Fla. 3^rd DCA 2002); Martinez v. Abraham Chevrolet- Tampa, 891 So.2d 579 (Fla. 2^nd DCA 2004).  This fundamental concept of preserving the record for appeal applies to local government proceedings as well.  In Fort Lauderdale Board of Adjustment v. Nash, 425 So.2d 578 (Fla. 4^th DCA 1983) the court held that the “circuit court, on certiorari review, was limited in its examination to the record of proceedings before the board.  Thus, the court acted inappropriately by basing its reversal on a theory espoused for the first time in the petition for review.” Id. at 580.

Because Petitioner in this case failed to raise any objections during the City Commission Hearing regarding the introduction of new evidence, Petitioner lacks standing to appeal the City Commission Hearing because Petitioner failed to place on the record its objection.

3.                  Respondent’s decision was supported by competent substantial evidence.

Respondent’s final decision to grant the Association’s appeal and reverse the Zoning Board’s earlier decision was supported by competent and substantial evidence.  Specifically, Petitioner’s claim that Respondent’s final decision was not supported by competent and substantial evidence should be denied for the following reasons: A) The SD-9 maximum height limitation is not a maximum height entitlement; and B) Respondent’s decision is consistent with the city comprehensive plan and is supported by several legitimate state interests therefore is a valid exercise of the State’s police power

A)        The SD-9 maximum height limitation is not a maximum height entitlement.

            The Miami Zoning Ordinance SD-9 maximum height limitation reads as follows: “Residential and mixed use structures containing a residential component: 95 feet (8 floors) maximum[16].”  However, even though §609.8.1 of the Miami Zoning Ordinance states a maximum allowable height of 95 feet for this specific type of building, Petitioner is not automatically allowed to build up to that specified 95 foot height limit.  In order for Petitioner to be able to build up to the 95 feet height limit, the Petitioner must also satisfy the other pertaining sections of the Miami Zoning Ordinance.  In City Council of the City of North Miami Beach v. Trebor Construction Corp, 277 So.2d 852 (Fla. 3^rd DCA 1973), the court held that in addition to the height limitations, petitioner-appellee's building plans must comply with all other restrictions contained in the R-3B zoning classification as well as the safety criteria of the South Florida Building Code.

In this case, Petitioner must specifically satisfy the requirements set forth in §1305 of the Miami Zoning Ordinance.  As mentioned above, Respondent has the power to consider factors such as size, scale, bulk and compatibility with the surrounding neighborhood when determining whether the use and occupancy of the building is compatible and harmonious with other surrounding developments in the area.  Because the height Petitioner proposes is not compatible and harmonious with the surrounding community, Respondent’s decision to restrict the height of Petitioner’s buildings must be upheld.

Furthermore, Florida case law has held that 35 feet is an acceptable scale for the height of a building situated in a residential type neighborhood. Battaglia Properties v. Florida Land and Water Adjudicatory Commission, 629 So.2d 161 (Fla. 5^th DCA 1993)  In Battaglia, Id., the evidence established that the conditions imposed on the development by changes to the comprehensive plan were reasonable and not arbitrary and, thus, did not unconstitutionally take property by depriving any reasonable economically viable use of the property.  These conditions included limits on office structures to 10,000 square feet per acre, requirement that office buildings be designed with residential scale and character, and a limit on the height of the office structures to 35 feet.  In Battaglia, Id., the court held that the conditions in the development order were designed to make the project compatible with surrounding residential areas, and thus harmonious and consistent with the Orange County Growth Management Policy and the City of Maitland's Growth Management Plans, for those surrounding areas. Id. at 162.

            Based on the foregoing, Respondent’s decision to restrict the height of Petitioner’s building must be upheld.

B)        Respondent’s decision is consistent with the city comprehensive plan and is supported by several legitimate state interests therefore is a valid exercise of the State’s police power.

            Legitimate state interests that support Respondent’s valid exercise of its police power include, but are not limited to: i) Maintaining the character of the surrounding neighborhoods; ii) Prevention of overcrowding; and iii) Aesthetic considerations.

i) Maintaining the character of the surrounding neighborhoods

In determining the validity of a zoning regulation, the character of the area may be taken into account. Dade County v. Moore, 266 So.2d 389 (Fla. 3^rd DCA 1972) Actually, the character of the surrounding area may be the most important factor that is considered when determining the validity of a zoning ordinance. City of Mary Esther v. Tringas Theatres, Inc., 301 So.2d 500 (Fla. 4^th DCA 1974) In City of Mary Esther v. Tringas Theatres, Inc. the court based its decision that the zoning regulation was unreasonable solely on character evidence of the surrounding area. Furthermore, it has also been held that zoning regulations that promote the integrity of a neighborhood and preserve its residential character are related to the general welfare of the community and are a legitimate exercise of the local municipality’s police power. City of South Miami v. Hillbauer, 312 So.2d 241 (Fla. 3^rd DCA 1975); S.A. Healy Company v. Town of Highland Beach, 355 So.2d 813 (Fla. 4^th DCA 1978)

In the case at hand, one of the primary reasons behind restricting the height of Petitioner’s building is to preserve the historic and residential character of the residential areas within the Morningside district. Based on the foregoing, Respondent’s height limitation must be upheld because it is supported by a legitimate state interest; maintaining the character of the surrounding neighborhoods.

ii) Prevention of overcrowding

Zoning ordinances may also be enacted to prevent the overcrowding of land. H. Watson v. Mayflower Property, Inc., 223 So.2d 368 (Fla. 4^th DCA 1969)  Actually a zoning ordinance which prevents the overcrowding of land has been held as being a valid use of the local municipalities’ police power. Dade County v. Yumbo, 348 So.2d 392 (Fla. 3^rd DCA 1977)  In Town of Bay Harbor Islands v. Driggs, 522 So.2d 912 (Fla. 3^rd DCA 1988) the court held that a zoning ordinance was valid because it was supported by evidence that the “ordinance would protect the small town character of the community, prevent traffic congestion, and reduce the risk of crimes against property and persons.” Id. at 912.

In the case at hand, one of the principle reasons behind the height limitation is to protect adjacent low density neighborhoods from the negative impacts that can accompany a large-scale project.  As it is, Biscayne Boulevard is only 80-100 feet wide at this point. (A.212)  This is relatively narrow for a commercial street[17]. (A.212)  Therefore, based on the foregoing, the height limitation must be upheld because it is once again supported by a legitimate state interest.

iii) Aesthetic considerations.

Aesthetics is another factor that may be considered in determining the validity of a zoning ordinance.  In City of Miami Beach v. Ocean & Island Co., 147 Fla. 480 (Fla. 1941) the court held that aesthetics may be considered in connection with the general welfare of a community.  Actually, the “peculiar characteristics and qualities of a city may justify zoning to perpetuate its aesthetic appeal, and such zoning is an exercise of the police power in the protection of this public welfare.” City of Miami Beach v. First Trust Co., 45 So.2d 681 (Fla. 1950) at 684; Metropolitan Dade County v. Section 11 Property Corporation[18]  Furthermore, a zoning ordinance does not become invalid merely because it is based solely or predominately on aesthetic considerations. City of Coral Gables v. Wood, 305 So.2d 261 (Fla. 3^rd DCA 1974) In Jacobi v. City of Miami Beach, 678 So.2d 1365 (Fla. 3^rd DCA 1996) the court held that “Municipality does not, ipso facto, act in arbitrary or capricious manner merely by considering community esthetics.” Id. at 1366.

In the case at hand, one of the principle reasons behind the height limitation is to ensure that the historic aesthetic character of Morningside is preserved.  Based on the foregoing, the height limitations passed by the City Commission must be upheld because it is once again supported by a legitimate state interest.

CONCLUSION

            Based on the foregoing, Respondent respectfully requests that this court deny Petitioner’s claim and uphold the Miami City Commissions decision that reversed the Zoning Boards decision and granted Respondent’s appeal.

certificate of service

I HEREBY CERTIFY that a copy of the above and foregoing was served by mail upon:  DOUGLAS M. HALSEY, ESQ., WHITE & CASE LLP, Wachovia Financial Center, Suite 4900, 200 South Biscayne Boulevard, Miami, Florida 33131-2352 and ANDREW DICKMAN, ESQ., 9111 Park Drive, Miami Shores, FL 33138, this 10th day of June 2005.

                                                                        Respectfully submitted,

                                                                        Jorge L. Fernandez, City Attorney

                                                                        Rafael E. Suarez-Rivas, Assistant City Attorney

                                                                        Attorneys for Respondent City of Miami

                                                                        The City Commission of the City of Miami

                                                                        945 Miami Riverside Center

                                                                        444 SW 2^nd Avenue

                                                                        Miami, Florida 33130

                                                                        Tel: (305) 416-1800

                                                                        Fax: (305) 416-1801

                                                                        By:  _____________________________

                                                                                    Rafael E. Suarez-Rivas

                                                                                    Assistant City Attorney

                                                                        Florida Bar No. 293881