Greenberg Traurig Alert

Miami Beach Considering Downzoning and Tightening Land Use Regulations

January 31, 1997

Development on Miami Beach may become much more difficult as the City contemplates adopting severe restrictions on the intensity of land use. After more than a year of review, the City's Land Use and Development Committee has prepared a recommendation package setting forth several proposed changes to the City's Zoning Ordinance. Unlike the last major revision of the Zoning Ordinance in 1989, which generally increased the ability of landowners to develop their property, this proposal would represent a substantial reduction in the development potential of many properties on Miami Beach. We urge our clients that own property within the jurisdiction of Miami Beach to evaluate the proposed amendments, and to immediately assess the potential impact of these provisions on their real estate holdings. The proposal also affects already improved properties, since the proposed amendments would restrict additions to existing buildings, and may convert many structures and uses into non-conforming structures or uses.

A. Summary of the Proposed Amendments

Changes in zoning classifications that impose greater restrictions on the ability of the owner to develop are commonly referred to as "downzoning." While the Miami Beach plan contains numerous downzoning provisions, it also amends other land use regulations that can further restrict development even on those properties whose zoning district remains unchanged. The draft ordinance is unavailable, since the proposal is still only in the recommendation stage. The following is a summary of some of the more significant features of the proposal:

1. "Down-Zoning" and "Down-Planning"
   The proposal seeks to change the zoning and comprehensive planning designations to reduce density and intensity of uses in several areas. The changes in land use designation are not limited to intensity of use, but may also change the type of use that will be permitted on certain properties, converting some commercial zones to residential uses. Property owners should examine the proposal carefully to determine whether their properties are located within a down-zoning area, and whether such down-zoning would be to their detriment.
2. Height Limitations
   For the first time, outside of height limitations in historic districts, Miami Beach will impose height restrictions across the City. Permissible heights would vary in different areas, and maps depicting these height limitations are available for inspection from our offices or at City Hall. Except for structures on lots larger than 100,000 square feet, no residential buildings will be permitted to rise above 250 feet. In the highest-density commercial areas, buildings will be limited to 100 feet in height.
3. Reductions in Floor Area Ratio
   The proposal recommends reducing the maximum allowable floor area ratio ("FAR") in certain medium and high intensity districts (both residential and commercial) by approximately 10%. The suggested new floor area ratios are as follows:

   DISTRICT	PROPOSED MAXIMUM FAR (with bonuses)	PRESENTLY ALLOWED MAXIMUM (with bonuses)
   RM-2	2.5	2.75
   RM-3	4.0	4.5
   CD-2	1.8	2.0
   CD-3	4.0	4.5
   MXE	2.7	3.0

4. Non-Conforming Buildings
   The ability of a landowner to improve non-conforming buildings would be further restricted. In zoning districts governed by FAR (except single family homes), no additions to non-conforming buildings will be permitted which are taller than the existing non-conforming structure, and all additions will be required to meet the lot coverage requirements resulting from current setback regulations. Such properties will also have to meet current parking requirements or provide parking within 500 feet of the site (except in historic districts).
5. Parking
   The plan would eliminate the parking impact fee program, which allows property owners to provide parking through payment of impact fees. Under the proposal, owners have no option but to provide all required parking either on-site or within 500 feet (except in historic districts or additions to existing buildings of less than 5,000 square feet). The proposal also includes a 50' height limitation on all parking structures.

   The plan contains numerous other provisions that may interfere with the ability of property owners to fully develop their holdings, including increased setback requirements, restrictions upon design bonuses, and new design review guidelines. The impact of the proposed regulations will vary depending upon the nature, location, and current zoning of one's property. All landowners in Miami Beach should examine their holdings in light of the specific provisions of the proposed amendments to assess the impact of those amendments.

B. Status of the Proposal and Potential Remedies Available to Property Owners

On February 5, 1997, the City Commission will hold a public hearing to consider whether to refer the proposal to the City's Planning Board. Any potentially affected property owners should be prepared to appear and to object to this action, or at a minimum submit a letter of objection with the City Clerk's office to be included in the record. If the Commission refers the matter to the Planning Board, which then recommends in favor of any of the proposed amendments, the amendment is deemed to be "zoning-in-progress," and a moratorium prohibiting the issuance of development approvals inconsistent with the proposal will be imposed. A moratorium will prohibit the City from granting approval of any project which does not conform with the amendments, unless a validly issued permit, variance approval or Design Review approval or a completed application meeting all submission requirements for Design Review approval, Board of Adjustment variance approval, or building permit approval has been obtained prior to a favorable vote by the Planning Board. The moratorium would stay in effect, if the proposals are not adopted by the Commission, for approximately 90 days.

1. Creation of Legal Non-Conforming Uses and Structures
   If any or all of the proposals are adopted, they may affect properties that have already been developed. As with any major change to land use regulations, many current uses and structures may not meet the new requirements and will become legal non-conformities. Becoming a legal non-conformity can drastically affect the value of a property, even though the current use and structure may be maintained. Non-conforming status can affect one's ability to enlarge, renovate, repair, or alter any buildings on the property, and may prevent owners from rebuilding in the event of catastrophic loss. These limitations can hinder landowners when re-financing or insuring non-conforming properties.
2. Bert J. Harris, Jr. Private Property Rights Protection Act Claims and Regulatory Takings Claims
   In 1995, the Florida Legislature adopted the landmark Bert J. Harris, Jr. Private Property Rights Protection Act (the "Harris Act"), which created a new cause of action for landowners who are aggrieved by the imposition of new land-use regulations. Under the Harris Act, if an existing use or a vested right to a specific use is "inordinately burdened" by a new local government regulation, the owner of the real property is entitled to relief, which may include monetary compensation. Harris Act claims must be initiated by the presentation of a written claim for relief to the head of the local government, accompanied by an appraisal demonstrating the loss in market value of the property. After a 180-day settlement period, if no agreement is reached the landowner may file an action in circuit court against the local government. The Harris Act requires that claims must be presented within one year from the date a regulation is first applied to a property. All those that may be affected should consider the impacts of the Harris Act on any such claims.

   Although the foregoing list of issues is not comprehensive, it provides a starting point for evaluating the effects that the proposed zoning amendments may have on your real estate holdings. It is important to begin assessing the potential impacts early; until the proposed changes are incorporated into the Zoning Ordinances, interested parties still have the opportunity to provide input to the Miami Beach Commission and Planning Board. Through early preparation, landowners may be able to limit the adverse effects of a regulatory change where feasible, and position themselves well for a subsequent compensatory action. Please contact our office if you would like a copy of the proposed amendments.