The Current State Of Zoning Laws In Miami-Dade County: Ramifications Of Miami-Dade County V. Omnipoint Holdings, Inc.

By Stanley B. Price

Over the past two decades, Miami-Dade County has reasserted itself as one of America's foremost regions of urban development. From the rapidly redeveloping downtown district to the sights and sounds of South Beach, new construction and redevelopment projects have changed the face of Miami-Dade County and revitalized South Florida as one of the Nation's most sought after destinations. Early developers like Henry Flagler characterized Miami-Dade County as the last train stop to paradise—his prognostication has been fulfilled.

The recent surge in urban development throughout Miami-Dade County can be, at least partially, contributed to the area's rise in population. The warm climate, natural beauty, and scenic landscape of Miami-Dade County have always attracted people to the area but the amount of new residents flocking to the County in recent years is no less than staggering. According to population projections issued by the U.S. Census Bureau, Miami-Dade is among the top ten most populated areas of the Country with well over two million residents. Estimated growth rates show that over a quarter of a million people were added to its population base between 1990 and 1999 and an additional 36,321 new residents came to call Miami-Dade County home between years 2000 and 2001. During the last census count, nearly 30,000 new housing units were constructed in Miami-Dade County and a vast number of commercial and industrial developments continue to be underway. Today, scattered construction cranes stand throughout the County as monuments to Miami-Dade's bullish development market. The American dream of owning a single-family home is clearly evident in the western areas of Miami-Dade County.

In the early part of last year, however, the future course of development in Miami-Dade County was seriously impaired when, on March 6th, 2002, the Third District Court of Appeal released its decision in Miami-Dade County v. Omnipoint Holdings, Inc., 811 So. 2d 767 (Fla. 3d DCA 2002). The case arose from an appeal filed by Miami-Dade County that sought to quash a circuit court's order directing the County to grant zoning relief to construct a 148-foot telecommunications monopole in the southwest portion of Miami-Dade County. Although the issue was not directly before the Court, the Third District declared the provisions and standards of the Miami-Dade County Code (the "Code") that authorize the Board of County Commissioners and the County's Community Zoning Appeals Board to grant special permits and variances from the Code to be unconstitutional.

Relying primarily on precedent established in University Books and Videos, Inc. v. Miami-Dade County, 132 F. Supp. 2d 1008 (S.D. Fla. 2001), and Lady J. Lingerie, Inc. v. City of Jacksonville, 176 F.3d 1358 (11th Cir. 1999), both of which dealt with First Amendment issues that were inapposite to the facts in issue in the Omnipoint case, the Third District held that the standards in the Code, at that time of the decision, did not provide "precise and objective" criteria to guide the decisions of administrative bodies reviewing requests for such forms of zoning relief. The net result of the Court's decision left no standards and no provisions to grant many of the zoning applications pending and later filed with the County.

Soon after the issuance of the Omnipoint decision, Miami-Dade County filed a petition for writ of certiorari with the Florida Supreme Court challenging the Third District's finding of unconstitutionality. Several local municipalities, community builders, charitable organizations, and other various development interest groups joined in the County's efforts by submitting legal briefs amici curiae to the Florida Supreme Court. On Friday, December 20, 2002, the Florida Supreme Court issued an order accepting appellate jurisdiction to hear arguments on the validity of the Third District Court of Appeal's decision. Oral arguments before the Florida Supreme Court took place on June 2, 2003. There is no indication, however, of when the Florida Supreme Court will render its opinion. Our law firm, Bilzin Sumberg Baena Price & Axelrod LLP, currently represents a number of municipalities and development interest groups in the pending litigation.

Throughout the past fifteen months--since the time that Omnipoint was rendered--various developers, the building industry, private attorneys and the County have been working together to develop new standards and adopt new ordinances that would cure the arguably deficient Code provisions declared unconstitutional by the Third District. Through these efforts many Omnipoint issues have been alleviated but, at the same time, many remain unresolved.

During the period of refinement, several curative ordinances have been approved by the County Commission. The new application review criteria established through these ordinances, known as "Alternative Development Option Standards", permit greater flexibility for developers and is consistent with modern land use policies commonly referred to as new urbanism. New urbanism encourages innovative design and methodologies that insure compatibility with good design and replaces old notions of cookie cutter developments, which have long been rejected as a formula for sound development.

Prior to rendition of the Omnipoint decision, regulations governing variations from the Code's requirements for setbacks, minimum lot area and frontage, maximum lot coverage, and the like were generally based upon a demonstration that the requested relief was consistent with the County's Comprehensive Development Master Plan, compatible with the surrounding area, and would not serve as a detriment upon the health, safety, and general welfare of the community. Today, however, these "reactive" zoning regulations—ones that could measure the particular merits of an application for development against the needs of the community it would serve—have been replaced by more rigid standards that establish a considerably raised floor on the minimum variations allowed. The maximum allowed variations are now capped by specific percentage decreases from the standard regulations set forth in the Code. For instance, setback variances for most structures permitted in the commercial districts of Miami-Dade County are now limited to a maximum reduction of 25 to 50 percentage of what is normally required regardless of the particular constraints associated with the proposed development. Additionally, in some circumstances, applicants will now be required to demonstrate an unnecessary hardship in order to gain zoning approval where no such showing was previously required.

The County Commission has also adopted new standards for modifications and eliminations of certain zoning conditions and restrictive covenants to replace the old standards that were deemed to be unconstitutional. Like applications for certain variances, pre-Omnipoint requests to modify or eliminate conditions of previously approved zoning resolutions and restrictive covenants generally rested upon a demonstration that the conditions attached thereto were satisfied or, in the alternative, that the conditions and/or restrictions were no longer necessary to preserve the health, safety, or general welfare of the community. Today, however, the newly adopted ordinance governing these types of requests set forth twenty-seven pages of standards and regulations that one must satisfy. One of the sections to the Ordinance, entitled "Modification or elimination of conditions and restrictive covenants when no new adverse impacts will result", requires applicants to demonstrate compliance with more than twenty-one specifically enumerated criteria.

Unfortunately, however, despite the enactment of these curative ordinances several hundred zoning applications still remain held in abeyance due to Omnipoint issues that have yet to be addressed. In addition, the validity of several previously approved projects, which were not timely appealed, have also been called into question through independent judicial proceedings and by concerns raised by the banking and commercial lending community. In one specific matter involving the approval of a large religious institution, attorneys for objecting neighboring property owners sought to apply the Omnipoint decision retroactively and, thereby, revoke the property owners previously granted zoning permits. Although these arguments have ultimately failed, pending applications seeking zoning approval to permit the development of churches and private schools, which required a special exception permit under the old Code, continue to wait for their chance to proceed to a public hearing. For those developers and for others with similar projects upheld by Omnipoint, the Court's decision has created a de facto zoning moratorium costing the development community in Miami-Dade County millions upon millions of dollars. Projects still affected by the Court's ruling remain in hiatus while those that have been given the "green light" to proceed to public hearing will likely have a much stepper climb to success.

At least two separate Florida Appellate Courts and a United States District Court in South Florida have ruled that the rationale utilized by the Omnipoint decision was incorrect. These courts held that a standard of compatibility is of sufficient magnitude that its constitutional impacts can be measured. Overall, various courts have determined that the pre-Omnipoint review criteria are legally sufficient. These standards have stood the test of time and hopefully will reemerge as constitutionally acceptable. More poignantly, however, hopefully the decision by the Supreme Court will crystallize the criteria to be applied to zoning ordinances throughout Miami-Dade County and across the State of Florida.

Stanley Price is a partner in the land use and environmental department with the Miami law firm of Bilzin Sumberg Baena Price & Axelrod LLP