Court Finds City Violated Zoning Code In Settlement Benefiting Developer

The backroom settlement with developers that led to the pending development of a Wawa across the street from George Washington Carver Elementary and Middle School was an eye opener to residents of Coral Gables.

As you will remember, the Wawa case was settled by the City, after the City intervened in the matter between Miami-Dade County and the Lola B. Walker Foundation. The settlement, in that case, did not involve the City at the time. The Foundation secured a Community Center, which is currently being used as the offices of the developer, while the developer got the rights to develop the adjacent lot across the street from the school.

However, it is not the only instance in which City staff has worked out a backroom settlement that has helped advance the development rights of developers in complete disregard to City code.

The 701 & 711 Valencia Avenue Deal

Biltmore Development, LLC (“Biltmore”) purchased three properties located at 701 and 711 Valencia Avenue (third lot is located between the two) in 2015 and 2016. The lots are located behind the David William.

In 2018, Biltmore applied to build an 11-story, 124-foot residential building, when the City’s code allows a height of 70 feet on lots that are smaller than 20,000 square feet. Property records searches for the three Biltmore properties add up to 17,319 square feet. However, former City Attorney Craig Leen stated, in an opinion, that the permissible height at these sites was 150 feet based on site specific zoning regulations. According to the Court opinion, “In reliance upon these prior City Attorney legal opinions, City Attorney Craig Leen stopped the Board of Architects from hearing the David William’s objections.”

The David William Condominium Association appealed the zoning determination, but it was denied by the City due to the fact that the appeal should have been filed in the Circuit Court. The appeal was filed in the Court by the David William and the City reached a settlement with the association and the developer. “Under the Agreement, the David William agreed to withdraw its lawsuit, and the Biltmore agreed to reduce the size of its project from 124 to 75 feet in exchange for the City granting its project an increase of FAR from 2.0 to 2.7.”

FAR refers to Floor Area Ratio. The FAR is calculated by taking the square feet of the floor area of the development and divide it by the square footage of the property. The difference of 2.0 to 2.7 may not seem like a large difference, however, based on 17,319 square feet of the property, a 2.0 FAR would allow for 34,638 square feet, while a 2.7 FAR would allow for 46,791 square feet. It represents an additional 12,153 square feet.

The settlement was approved by the City Commission on March 12, 2019, with Commissioner Michael Mena stepping down prior to the discussion, as his firm Akerman Senterfitt represented Biltmore.

Alliance Starlight III, LLC v. City of Coral Gables, Florida

Alliance Starlight III, LLC (“Alliance”) is the owner of the properties at 717, 729, 737 and 741 Valencia Avenue. Alliance had also appealed the City’s decision in 2018. They were not included in the City’s settlement.

The City Commission held two “Executive Sessions” of the City Commission to discuss this case. (November 12, 2019 and June 9, 2020). The Executive Sessions are exempt from Sunshine and held in private with no public participation. Minutes are recorded by a court reporter, but not available to the public until after the litigation is concluded.

The Commission approved an amended settlement agreement at the March 9, 2021 Commission meeting. Alliance appealed.

On March 15th, the Appellate Division of the Circuit Court of the Eleventh Judicial Circuit filed its opinion in Alliance Starlight III, LLC v. City of Coral Gables, Florida. The case was decided on by a three Judge panel made up of Judges Walsh, Trawick and Santovenia.

In its decision, the Court found that the City Commission, in approving the settlement, “departed from the essential requirements of law in two respects. First, it adopted a Resolution that is inconsistent with its zoning code limiting FAR to 2.0. Second, the City Commission adopted a Resolution in violation of Sections 3-1703 through 3-1705 which require that to approve a settlement, there be evidence of an unfair, disproportionate, or inordinate burden imposed on the property owner.”

The decision explains that neither the City nor Biltmore ever describe any circumstances where Biltmore suffered an inordinate or unfair burden.

The Court’s Decision

“Approval of the settlement permitting an increase of FAR allowed for disparate treatment of the single Valencia Property for the sole benefit of the owner of the Biltmore. The Resolution permitted an impermissible variance from FAR requirements required by the Comprehensive Plan and Zoning Code yet denied the same FAR increase to properties similarly zoned like the Petitioner’s property.

As set forth above, the City violated its own zoning code in approving a settlement agreement without requiring proof or making findings that the developer suffered an inordinate or unfair burden. Likewise, the resolution passed without any competent, substantial evidence to support it. Because there was no competent, substantial evidence to support the resolution approving the settlement agreement, we must quash it.

We grant the Petition for Writ of Certiorari and quash the resolution approving a Settlement Agreement allowing an increase of FAR in violation of the city zoning code as a departure from the essential requirements of law, absent competent substantial evidence to support it, and because the resolution constitutes impermissible spot zoning.”

Bert J. Harris Act

According to the Florida Bar, “Florida is a state that provides relief to private landowners when a law, regulation, or ordinance inordinately burdens, restricts, or limits private property without amounting to a taking under the U.S Constitution.”

The City argued that Biltmore had an “inordinate burden under the Bert J. Harris Act.”

However, the Court disagreed. “This Court finds no merit in the Respondent’s argument that the mere mention of an alleged Bert J. Harris problem satisfied the property owner’s burden to enable the City to ratify the settlement.”

Dissenting Opinion

In dissent, Judge Santovenia states that “there is no more substantial competent evidence in the record to support the approval of the 75-foot height for development of the Valencia Property than is lacking to support the FAR of 2.7. The record supports only that these negotiated terms were agreed to in the Settlement Agreement by Biltmore in order to resolve the lawsuit filed by its neighbor, the David William.

Cost And Appeal

As of May 19th, the City had already spent $151,793.60 on outside counsel for this litigation.

The City Attorney is appealing the Court’s decision, at tax payer expense.