Alvey v. City of North Miami Beach

May 02, 2016
Litigation Success

Insufficient Evidence to Support City Rezoning Resolution

The Third District Court of Appeal held that the Developer failed to provide any evidence, and the City of North Miami Beach failed to make any findings of fact, that the proposed zoning amendment was consistent with the surrounding neighborhood land use pattern as mandated under the City’s code.

Braha Dixie, LLC, (“Developer”) filed an application to rezone its property from CF (“Community Facility”), and RM -23 (Residential Mid-Rise Multi-Family”), to B-2 (“General Business”). The Developer sought the zoning change to erect a hotel with two ten-story buildings and an 87,700 square foot six story office building with 25,600 square feet of ground floor retail space and a four story, 600 space parking garage along West Dixie Highway. The Petitioners were surrounding property owners that objected to the proposed rezoning and hotel project.

After purchasing the property, the Developer applied for a small scale amendment to the land use map (“FLUM Amendment”) and for a rezoning of the property. The City’s Planning and Zoning Board recommended against the FLUM Amendment, however, the City approved the amendment and proceeded to consider the Developer’s rezoning application.

The initial step for the rezoning was consideration by the City’s Planning and Zoning Board who voted 5-1 against the rezoning application and recommended denial to the City Commission. The Developer’s application then proceeded for consideration by the City Commission in two required readings. Despite the Board’s recommendation and despite the fact the Developer made no presentation, at first reading, the City Commission voted in favor of the application, without any comment and without addressing the relevant code section.

At the second reading, the Petitioners along with several other surrounding residents appeared and spoke in opposition of the application. The Developer again made no presentation and the City voted to table the matter.

At the third and final reading, the Developer presented two experts, one testified that the proposed project was “compatible” with the other business areas along a different street, namely, Biscayne Boulevard. The traffic engineer testified regarding a traffic study that considered conditions along Biscayne Boulevard and that no study had been performed along West Dixie Highway. The Petitioners along with several other residents voiced their concerns to the Commission.

The Mayor and Commissioners primarily discussed the economic benefits the project would bring to the City, following these comments, the City unanimously approved the Developer’s rezoning application. Following the City’s approval, the Petitioners sought certiorari appeal to the circuit court, which affirmed the City’s decision.

On appeal, the Third District analyzed the City’s rezoning requirements and “rezoning review standards” which mandated that “the proposed change would be consistent with and in scale with the established neighborhood land use pattern.” The appeals court held that in addition to the Developer’s failure to present any evidence that a rezoning of the subject property would be consistent with the code’s requirements, the record was completely devoid of any suggestion that the City even considered its code requirements in approving the application.

As such, the appellate court held that the City’s code requires submission of evidence and a finding by the City that the proposed zoning amendment would be consistent with and in scale with the established neighborhood land use pattern. Because there was no evidence presented regarding the requirement and the City made no finding, nor could it without the submission of any evidence, the court granted the petition and quashed the circuit court’s decision affirming the City’s resolution.

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About Us

Keith Poliakoff is a partner in the Fort Lauderdale office of Arnstein & Lehr LLP and co-chair of the firm’s Government Relations Practice Group. As a well-known and respected attorney in Broward County, he has considerable experience with all aspects of Florida governmental entities.