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Morningside Vs Condos: A
landmark lawsuit reveals the truth,
which can help Coconut Grove.
Dear
Concerned Citizen of the City of Miami,
Attached
to this email is part of a landmark
lawsuit that has the potential
to change the current thinking, and
therefore the urban fabric, of Miami.
Backstory: A developer
(Morningside Development LLC) proposed
building two 100 foot tall condos next
to the single family homes of
Morningside at 5301 and 5501 Biscayne
Boulevard. The city issued a class
2 special permit to do so. The
Morningside Civic Association appealed
that permit to the Zoning Board.
The Zoning Board ruled in favor of the
developer, as they usually do. The
Morningside Civic Association then
appealed to the Miami City Commission.
The Morningside Civic Association has
argued for the past year and a half
that all the competent, substantial
evidence shows the proper scale for a
building on a commercial corridor is 35
feet, or 3 stories.
On March 10, 2005, (our 21st appearance
at City Hall fighting hi-rises), the
City Commission ruled in favor of the
Morningside Civic Association, denying
the permit!
Shortly afterwards, the developer filed
a lawsuit against the city (with the
Morningside Civic Association named as a
co-respondent), asking the court to
overturn the Commissionıs decision.
This set up a most unusual situation.
Because the Miami City Attorney is
assigned the task of defending City
Commission actions as a matter of
routine policy, the City Attorney would
now defend a City Commission ruling that
was in favor of a neighborhood and
against a developer.
To do so, Assistant City Attorney Rafael
Suarez-Rivas did extensive research
into existing Florida case law that
empowers local governments to make
zoning decisions that protect
neighborhoods. He did an excellent
job.
The attached legal brief is 19 pages
long, and is quite readable (although
it does have its share of legalese).
But for those of you whose time is
precious (and whose time isnıt?), here
are some selected highlights:
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Petitionerıs [ the developerıs ] right
to his or her property is not
absolute (page 4)
The SD-9 maximum height limitation is
not a maximum height entitlement.
The petitioner [ the developer ] must
also satisfy the other pertaining
sections
of the Miami Zoning Ordinance,
specifically section 1305.
Respondent [ the
City of Miami ] 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.
(page 14-15)
Florida case law has held that 35 feet
is an acceptable scale for the height
of a building situated in a residential
type neighborhood. (page15)
Legitimate state interests that support
Respondentıs [ the City of Miamiıs ]
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. (page 16)
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 municipalityıs
police power. (page 16)
Zoning ordinances may also be enacted to
prevent the overcrowding of land.
A zoning ordinance which prevents the
overcrowding of land has been held as
being a valid use of the local
municipalitiesı police power. (page 17)
The court held that a zoning ordinance
was valid because it was supported by
evidence that the ³ordinance would
protect the small town character of the
community, prevent traffic congestion,
and reduce the risk of crimes against
property and persons.² (page 17)
Aesthetics is another factor that may be
considered in determining the
validity of a zoning ordinance.
The court held that aesthetics may be
considered in connection with the
general welfare of a community.
Actually,
the ³peculiar 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.² (page 17-18)
===
As you can imagine, this response from
the city has caused quite a stir.
Remember, this came from the City of
Miami, not from a neighborhood.
Morningside feels a tremendous sense of
validation because the arguments
that we have been making for a year and
a half on this issue have been
echoed by the Miami City Attorney!
This response from the City also clears
up some misconceptions, such as the
notion that a developer can build a
condo, or anything else, as of rightı.
The truth is that the city has
tremendous power to dictate what can and
cannot be built. There is very
little that is as of rightı.
This response also shows that our City
Commission is very well empowered to
protect all our neighborhoods from
inappropriate development, such as
high-rise condos along corridors like
Biscayne Boulevard, 27th Ave, 37th
Ave, LeJeune, 8th street, Flagler, the
Miami River, etc. The commission
is
also empowered to protect our landmark
buildings from high rises, be they
the Freedom Tower (Dade Heritage Trust
please take note), the Coconut Grove
Playhouse, the Miami Womenıs Club or
the Performing Arts Center.
Similarly,
Coconut Grove can be protected from big
box retail.
So if the above is true, why has so much
oversized, inappropriate
development already taken place, with
more being allowed? Two reasons:
First, for decades the developers have
contributed large sums of money and
influence to the political process.
Second, the average voter in Miami has
been apathetic, thus allowing the
developers to take the driverıs seat.
After so many years of seeing
inappropriately large buildings go up,
many Miamians have succumbed to the
³tall buildings are inevitable²
mindset, infected with self-fulfilling
defeatism: ³We canıt win, so why
try?²
This landmark lawsuit has brought the
truth to light. We have the tools
to
change things for the better. We
had them all along, but now we know we
do.
We can win.
--
Elvis Cruz / Morningside Civic
Association
landmark
lawsuit
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