Page1of11

321OCEANENRIQUENORTENSPOTZONINGMEMORANDUM
ACounterMemorandumtotheCityAttorneysMemorandum

TO: GaryHeld,CityAttorney
FROM: DavidArthurWalters,N.O.C.
DATE: August27,2014
SUBJECT: DISCUSSIONOFTHEOCEANBEACHHISTORICDISTRICTRPS4ADHOCSPOT
ZONINGAMENDMENT
1

I have reviewed the amendment passed to determine whether it violated spot zoning. In
addition, after further consideration, I evaluated whether the proposed amendment violated
principlesofequalprotectionandotherfundamentals.Inbothinstances,theconclusionisthat
noneofthepropertieswithinthezoningdistrictwillprobablybenefitintheforeseeablefuture
fromtheproposedamendmentotherthanthepropertyforwhichthedevelopersandinvestors
and their collaborating contractors and attorneys procured the zoning for their immediate
enrichment; therefore, a violation of spot zoning, equal protection and other fundamental
rightsresultedfromitsadoption.
2

SPOTZONING:
Page2of11

Florida'sThirdDistrictCourtofAppeal("DCA")hascitedapprovinglythefollowingexplanation
ofspotzoning:
Thedefinitionofspotzoningiswellestablished:Spotzoningisthenamegivento
the piecemeal rezoning of small parcels of land to a greater density, leading to
disharmonywiththesurroundingarea.Spotzoningisusuallythoughtofasgiving
preferential treatment to one parcel at the expense of the zoning scheme as a
whole.
Further, the Third [DCA] detailed spot zoning as: [A] rezoning which creates a
small island of property with restrictions on its use different from that of
surroundingpropertiessolelyforthebenefitofaparticularpropertyowner.
In characterizing the elements of spot zoning, a spot zoning challenge typically
involves the examination of the following: 1) the size of the spot; 2) the
compatibility with the surrounding area; 3) the benefit to the owner and 4) the
detrimenttotheimmediateneighborhood.
BirdKendallHomeownersAss'nv.Metro.DadeCountyBd.ofCountyComm'rs,695So.2d908,
910,n.1(Fla.3dDCA1997)(citationsomitted).
Attorneys for the property owner proposing the residential project that has resulted in this
proposed amendment have submitted a specious legal memorandum that analyzes the
amendmentunderthislasttest,suggestingthatnospotzoningarisesfromthisproposal.Ihave
thoroughly disputed the misrepresentation of the facts in the overall analysis and conclusion
reachedinthatauthoritativememo.SEE:321EnriqueNortenandGreenbergTraurig,Oct.14,
2014,www.Scribd.com
A comprehensive explanation of spot zoning is found in an article published in the American
LawReports(ALR),whichdescribesthetestscourtsuseinevaluatingspotzoning:
Thereisno,preciseformulafordeterminingwhetherthezoningorrezoningofa
particularparcelconstitutesillegalspotzoning.Asathresholdmatter,thecourts
have generally noted that a parcel cannot be too large per se to preclude a
findingofillegalspotzoning,norcanitbesosmallthatitmandatesafindingof
illegal spot zoning. One court, for example, found illegal spot zoning where the
reclassifiedparcelwas635acresinanaffectedareaof7,680acres.Althoughthe
courts invariably evaluate the size of the parcel in question, they have made
clear that the size of the parcel in question is not alone determinative of illegal
spot zoning. Nor does the reclassification of more than one parcel negate the
possibility of finding illegal spot zoning. Courts have invalidated zoning
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amendments after finding that a multipleparcel reclassification was a

subterfuge to obscure the actual purpose of special treatment for a particular
landowner.
The most widely accepted tests for determining illegal spot zoning, sometimes
stated in combination, sometimes separately, are whether the zoning of the
parcel in question is in accordance with a comprehensive zoning plan; whether
the zoning of the subject parcel is compatible with the uses in the surrounding
area; and whether the zoning of the subject property serves the public welfare
or merely confers a discriminatory benefit on the owner of the property. These
criteriaareflexibleandprovideguidelinesforjudicialbalancingofinterests.
"Determinationwhetherzoningorrezoningofparticularparcelconstitutesillegalspotzoning,"
73A.L.R.5th223(originallypublished1999)(Emphasisadded,citationsandfootnotesomitted).
Usingthe"mostwidelyaccepted"testsfromtheALRarticle,theproposedamendmentisnotin
accordancewiththeCity'scomprehensivezoningplan,isincompatiblewiththehistoricusesin
the surrounding area, and does not serve the public welfare as is erroneously averred in
lobbyist Frank Del Vecchio's memorandum and in the planning directors staff report. Based
upon those negative factors, and taking into consideration the fallacious analysis by the
property owner's attorneys led by High Rise Power Lawyer Lucia Dougherty of Greenberg
Traurig.
3
Ibelieveitlikelythattheproposedamendmentwouldhavebeendeemedspotzoning
byacompetentcourtoflaw.
Equalprotection:
OnlyonepropertyownerswithintheRPS4districtwillbenefitfromthisamendment,andthe
otherswillnot.Asonecourtrecentlyexplained:
[I]f[thegovernment]permitssome[personstohavearight],thenitmustpermit
allcitizenstohaveanequalrightunlessthereisareasonsubstantiallyrelatedto
the public health, safety, morals and welfare of the community which justifies
unequal treatment under the law. Equal protection of the governed is the
bedrockofconstitutionalgovernment.Withoutit,governmentfails.
Orange County v. Costco Wholesale Corp., 823 So.2d 732 (Fla. 2002) (quoting the DCA, which
had quashed an ordinance establishing a 5,000 ft. distance separation between liquor stores;
the Florida Supreme Court then reversed the DCA, upholding the ordinance on rational basis
analysis).
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Ifthespotzoningamendmentadoptedhadnotinvolvedasuspectclassificationorfundamental
right(whichitindeeddoesinvolvesincethemostfundamentalrightofallisproperty,without
whichtherewouldbeneitherlibertynorhappiness)accordingtotheU.S.EleventhCircuitCourt
of Appeals it would have been evaluated under the rational basis test. Haves v. City of Miami,
52 F.3d 918, 92122 (11 th Cir. 1995) (upholding disparate treatment between houseboats
locatedindifferentwaterbodiesofthecity).
As the Haves court explains in its rationalization and condonation of what are often
unconstitutional exercises of the police power, the rational basis test involves the following
analysis:
The first step in determining whether legislation survives rationalbasis scrutiny
is identifying a legitimate government purpose a goal which the enacting
government body could have been pursuing; the actual motivations of the
enacting governmental body are entirely irrelevant. Moreover, the Equal
ProtectionClausedoesnotrequiregovernmentdecisionmakerstoarticulateany
reasonfortheiractions.
Thesecondstepofrationalbasisscrutinyaskswhetherarationalbasisexistsfor
theenactinggovernmentalbodytobelievethatthelegislationwouldfurtherthe
hypothesized purpose. "The proper inquiry is concerned with the existence of a
conceivablyrationalbasis,notwhetherthatbasiswasactuallyconsideredbythe
legislative body." As long as reasons for the legislative classification may have
beenconsideredtobetrue,andtherelationshipbetweentheclassificationand
thegoal"isnotsoattenuatedastorenderthedistinctionarbitraryorirrational,"
thelegislationsurvivesrationalbasisscrutiny.
Id.(Emphasisadded,citationsomitted)
The memoranda submitted by the Administration and Mr. Del Vecchio claimed that the spot
zoning amendment sought to encourage compatible residential development in the RPS4
district, and that 100 feet in height was necessary for such a development to be financially
feasible.
Mr. Del Vecchio lives next door to the spot zoned property. He allegedly feared that a hotel
therewoulddisturbhimhencehecollaboratedwiththedevelopers,wrotethefirstdraftofthe
amendment, raised and led the Hotel Noise Scare movement, and lobbied for passage of the
amendment.
Intruth,ifnoisewerereallytheissue,azoningamendmentcouldhavebeenputforwardthat
would have simply limited disturbing accessory uses regardless of the type of development.
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Furthermore, draconian amendments to the noise ordinance could have been written to curb
disturbances from such uses; imposing heavy fines, revocation of liquor licenses and usage
permits,etc.Densityissuescouldalsohavebeensuitablyaddressed.Afterall,SouthBeachisa
prime tourist destination, chock full of hotels. Most permanent residents prefer to live off the
beachside. Ironically, studies of noise complaints in predominantly residential areas show
residentialcomplaintsaboutnoise arejustasplentifulifnotmoresothaninthehoteldistrict
wheremorenoiseisexpected.
Intruth,thedevelopmentofthesocalled321OceanEnriqueNortenpropertydidnothaveto
beeitherahoteloraresidentialcondominiumproject.Itcouldhavebeenpreservedasapark,
agreenspot,orsomeotheruse.
In truth, developers and their effectual political cabinet, the city commission, are successfully
converting the South Pointe or South of Fifth area into a luxury habitat for extraordinarily
wealthypeoplewhocanaffordtomaintainseveralresidencesthroughouttheworld.Whatwas
oncecalledapoormansparadiseisarichmanshaven.Themiddleclassisbeingzonedout
oftheareaaspricesclimb,andthepoordonotdaresetfootinitexcepttosquatinthealleys.
And now the exclusionary spot zoning for this beach property will reduce the opportunity for
middleclasstouriststoenjoythehighlifeforatleastafewdaysduringtheyear.
Intruth,321OceanDrivewasthelastavailablespotavailableinthehistoricbeachfrontdistrict.
The district is already fully developed, with no further development to be encouraged that
wouldbenefitthecommunity.Ifanything,thebuildingsoneachsideofthedevelopment,one
ofthembeingwhereMr.DelVecchioresides,couldberazedandtallercondoserected,much
tothedetrimentofthecurrentowners.Thateventishighlyunlikely,notaslongashelives.
In truth, an attractive hotel would have been feasible on that last available spot on the beach
although not as immediately profitable to the developers and investors, who will now realize
enormous profits immediately from sales of the units in this luxury condominium complex
providingthebubbledoesnotburstagainanytimesoon.Thepenthousealonewillsupposedly
sellorhassoldfor$25millionormore,coveringthe$18millioncostoftheentireproject.On
theotherhand,ahotelprojectwouldrequirelongterminvestmentandmanagement,withthe
investmenttobewrittenoffovermanyyears.
In truth, an additional 25 feet over the existing height limitation is precisely what the
communitydidnotwantwhenitlimitedheightto75feetinthetreasuredhistoricaloceanfront
district,whichhappenstobeoneoftheforemosttouristdestinationsintheworld.Therewere
already fivebuildings standing at 100 feet prior to the establishmentof the 75 feet limitation,
and the community did not want one more tall building in that precious historic district,
whetherahotelorcondominium.YetahistoricArtDecohotelwasdestroyedinsteadofbeing
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restored or rebuilt, and then spot zoning legislated ad hoc so that a developer could erect
exactlywhatthecommunitydidnotwant,twobuildingswithoutanyarchitecturalrelationship
whatsoevertotheArtDecohistoryofSouthBeach.
Taking these factors into consideration in a rational basis test analysis, as if that analysis were
necessary, the zoning amendment is clearly irrational
4
inasmuch as it serves no legitimate
purposeandwasdesignedonlytoimmediatelybenefitthedevelopersandinvestorsandtheir
witting collaborators while duping the unwitting into supporting their scheme. In fine, the
amendmentdidnotpasstherationalbasistest.Itviolatedseveralconstitutionalrights,oneof
whichisequalprotectionofthelaws.
5

NOTES

1
ThisMemorandumwasnotwrittenbyFrankDelVecchio.Mr.Heldsstyleandsomeofhis
sectionswereduplicatedasfaircommentary.

2
I have mentioned elsewhere that institutional blindness may cause members of an
institution to believe that everything they do is reasonable and ethical simply because
everybodydoesit.Andthenthereisthepossibilityofsystemiccorruption,wheremanyparts
of the government supposed to prevent corruption have themselves become corrupted
budgeting, auditing, inspection, monitoring, evaluation, planning, and enforcement. Crony
capitalismisamorepopularlabelforthesystematiccorruptionofprocessestotheadvantage
of a few players. Crony capitalism is an economic system where firms depend on political
connectionsfortheirprofit.Governmentofficialsseektobenefittotheircroniesbecausethey
received benefits in forms of power; money, status, and so on. Socalled rent seekers are
motivated to corrupt officials capable of doling out favors, thus obtain parasitical "rent," an
unfair, wasteful advantage over other players. Entrepreneurs attempt to place themselves
withinthepowerelitetotakeadvantageofthesystem.Alliancesmustbeformedbecauseto
gain advantages in a democratic system hence political exchange forms a system where
everyonemustjoinacoalitionandvoteforpoliticalbenefitsforothersinordertogetpolitical
benefits for themselves. Insiders gain at the expense of outsiders. Everyone is motivated to
become an insidera crony. Wherefore entrepreneurs become predatory rather than
productive; they want to place themselves where they can get something for nothing: rent.
Rentseekers focus on the benefits they may get for themselves, and not on the losses that
might be imposed on others. They are likely to succeed if people who pay the costs are
unaware of the rentseekers. A classic analogy: A burglar might reason that it would be more
efficient to have a homeowner open a door than to break into his housethat way the
Page7of11

homeowner would not incur the cost of fixing a broken window in addition to the cost of the
propertylosttotheburglar.Buttheburglarismoreconcernedwithhisowngainthanwithany
costs borne by the homeowner as a result of the theft. The burglars chances of success are
greatlydiminishedifthehomeownerknowswhattheburglarisdoing.

3
GreenbergTraurigslegalopinionwasclearlyanabsurdfictionconvertedintolegalfictionbya
casuistic stretching of the socalled principles found in previous cases over a jumble of
contradictory facts in order to arrive at the foregone conclusion embedded in the premises,
that the ad hoc, multipleapartment building spot zoning for the exclusive benefit of the 321
Ocean Enrique Norten vested interests and their wealthy customers is not spot zoning. In any
case, the mumblejumble opinion, which we may presume conforms to the vague and
ambiguousLegalOpinionPrinciplesexplainedbytheAmericanBarAssociationsCommitteeon
Legal Opinion, represents, at the very least, the customary practice and customary
professional diligence of the legal profession, which, convenient to the purpose, does not
ordinarily have professional knowledge of all the factual information when preparing such
opinions.

4
Rationality(reckoning)isthebelief(belove)thatonesbeliefsarereasonable(reckonableor
calculable),thatthebeliefshaveacalculablerelationtothecausesorreasonsforbelievingin
something,or,thatonesactionsarereasonable,thattheyconformtothecausesorreasons
for the actions, those reasons or causes having a purpose or goal most efficiently achieved by
thatsymbolic(thinking)orphysicalactivity.Rationalityisrelativeinasmuchasthegoalsmaybe
selfishoraltruistic.Therationalbasistestappertainstotheperennialtugofwarbetweenthe
individualandthegroup;theI/Westruggle.
The rational basis test was created by the judiciary to condone its deference to legislation
providing that it has a legitimate purpose desired by the ruling elite, who get to determine
whatislegitimatesimplybymakingitconceivable.Thecourtwillgosofarastoconceiveitif
thestatelackstheimaginationtodoso.Thetestistantamounttoatotalabdicationofjudicial
responsibilityforupholdingtheConstitutionintendedtobethegroundofalllaw.
Judicial deference to zoning legislation became the current tradition with the U.S. Supreme
Courts decision in Village of Euclid et al v. Ambler Realty Company (1926), the subject of
MichaelAllanWolfsseminalbook,TheZoningofAmerica:Euclidv.Ambler(2008),whereinthe
author is obviously sympathetic to the virtual license the activist court gave to New Deal
legislation and environmental protection, while noting, for the sake of balance, ill effects such
Page8of11

as exclusion of undesirable groups, collusion between business and government to restrict

competition,andlanduseregulationsbasedonsubjectiveaestheticprejudices.
JusticeSutherland,forthemajorityinEuclid,pronouncedthat,"Ifthevalidityofthelegislative
classificationforzoningpurposesbefairlydebatable,thelegislativejudgmentmustbeallowed
tocontrol."Furthermore,Regulations,thewisdom,necessityandvalidityofwhich,asapplied
toexistingconditions,aresoapparentthattheyarenowuniformlysustained,acenturyago,or
even half a century ago, probably would have been rejected as arbitrary and oppressive. Such
regulations are sustained, under the complex conditions of our day, for reasons analogous to
those which justify traffic regulations, which, before the advent of automobiles and rapid
transitstreetrailways,wouldhavebeencondemnedasfatallyarbitraryandunreasonable.And
inthisthereisnoinconsistency,forwhilethemeaningofconstitutionalguarantiesnevervaries,
the scope of their application must expand or contract to meet the new and different
conditionswhichareconstantlycomingwithinthefieldoftheiroperation.Inachangingworld,
itisimpossiblethatitshouldbeotherwise.Butalthoughadegreeofelasticityisthusimparted,
nottothemeaning,buttotheapplicationofconstitutionalprinciples,statutesandordinances,
which, after giving due weight to the new conditions, are found clearly not to conform to the
Constitution,ofcourse,mustfall.
Thorstein Veblen, in The Theory of Business Enterprise (1910) attributed the erosion and
application of the notion of natural rights to the mechanization of society via the industrial
revolution.Thecitizenmaynotbedeprivedoflife,liberty,orpropertywithoutdueprocessof
law, and the due process proceeds on the premise that property rights are inviolable.
However,"Libertydoesnotmeanlicense;"whichineconomictermswouldbetranscribed,"The
naturalfreedomoftheindividualmustnottraversetheprescriptiverightsofproperty.Hence
Theremustbenointerferencewithothers'buyingandselling,exceptbymeansofbuyingand
selling.Ofcourse,Thisprincipleofnatural(pecuniary)libertyhasfounditsmostunmitigated
acceptanceinAmerica."Yes,"Americaisthenativehabitatoftheselfmademan,andtheself
mademanisapecuniaryorganism.WitnessthatPublicesteemisawardedtoartists,actors,
preachers, writers, scientists, officials, in some rough proportion to the sums paid for their
work. Nonetheless, this natural pecuniary right of competitive individualism was made
obsoletewiththemechanicalorganizationormachineindustryofthemoderneconomy,which
requiresstandardizationandregulation.Itis,perhaps,actual,withagross,materialactuality;
butitisnotreal,withalegal,metaphysicallycompetentreality.Suchcoercionasitmayexert,
ormaybeexercisedthroughitsmeans,therefore,is,inpointoflegalreality,nocoercion.For,
the pecuniary pressure of price or subsistence which the sequence and interdependence of
industrialprocessesmaybringtobearhasnostandingassuchinlaworequity.Now,Under
thecurrentdefactostandardizationofeconomiclifeenforcedbythemachineindustry,itmay
Page9of11

frequentlyhappenthatanindividualoragroup,e.g.,ofworkmen,hasnotadefactopowerof
freecontract.Thevisibledisparityinthedistributionofpropertymaymakethoseclasseswho
have little property envious of the wealthy members, and so make them lose interest in the
maintenance of the rights of property. The conceptions of natural rights on which the
common law rests embody a technically competent formulation of the deliverances of that
bodyofcommonsensewhichwasinculcatedbythedisciplineofeverydaylifeintheeighteenth
century, before the advent of the current situation; whereas the discipline of everyday life
under the current technological and business situation inculcates a body of commonsense
viewssomewhatatvariancewiththereceivednaturalrightsnotions.
The new tradition of judicial deference to local land use regulators has not gone without
opposition,anditisdebatablehowlongitwillstandbecause,fortunately,lawyersmaybewell
paidonbothsidesofarguments,andthetrendmaychange.Thepresenttraditionisdifficultto
condone because it is an extremely discretionary and often corrupt regulatory system. For
instance, in 2000, Congress determined that land use regulation lacks objective, generally
applicable standards, leaving zoning officials with unlimited discretion for religious
discriminationingrantingordenyingzoningapplications.
In fact, scholars and planning experts, whose profession is thinking, think that local
governments seldom make rational land use decisions. Judicial deference to the judgments of
landuseregulators,simplybecausethedecisionsseemto havearationalbasisin alegitimate
public purpose, is unjustified in view of the highly discretionary and systemically corrupt
regulatory process. Under the wait and see, piecemeal, or flexible approach to land use
zoning decisions, parttime city officials, who generally lack intensive training and extensive
experience in land use planning, have no objective standards against which to measure
individual zoning requests hence use subjective, casebycase or casuistic assessments of city
planners, city attorneys, and lobbying attorneys to justify their often prejudicial, foregone
conclusions.
Inthiscase,theskepticallaymanwhobotherstodiligentlystudytheissueandtourthefactson
the historic beachfront district cannot help but deem the opinion that spot zoning is not spot
zoning is as ludicrous as the opinion that a thing is a person, and vice versa, or that an
associationoftwoormorepeopleareoneperson,andsoon,notwithstandingtheinstitutional
blindness of the city planner, city attorney, and the lobbying lawyers who find the monstrous
opinion quite reasonable; the lobbying lawyers are naturally disposed to use anything new
learned from this successful experience to polish up their boiler plate rationalizations for
deployment in favor of future zoning propositions, much to their own profit at $700 or more
perhour,theratedisclosedbytheHighRisePowerLawyerintheinstantmatterof321Ocean
Enrique Norten. Such is the common law; it is rational to the extent that it rations out
Page10of11

prodigious fees to the dialectical profession that has no argument against making money as it
makesuphistoryinaformthatmerelyresembleshistoryinsteadofpreservingit,stretchingits
principles to such an extent in the City of Miami Beach that a member of the citys Historic
PreservationBoard,forexample,said,thereisnosuchthingashistoricpreservationinthiscity
anymore.
5
Sadly for strict constructionists who believe the Constitution is set in stone to protect them
against governmental encroachments, such as judicial activism without constitutional
amendments,whatisconstitutionaltodaymaybeunconstitutionaltomorrow.

For example, U.S. District Judge Robert Hinkle of Tallahassee has recently ruled When
observers look back 50 years from now, the arguments supporting Floridas ban on samesex
marriages,thoughjustasincerelyheld,willagainseemanobviouspretextfordiscrimination,
wrote Observers who are not now of age will wonder just how those views could have been
held.Aug.22,2014,MiamiHerald
BenjaminN.Cardozorationalizedtheflexibleprocessasnecessarytokeepupwiththeprogress
ofsocietyinhispopulartest,TheNatureoftheJudicialProcess(1921).CardozoquotesJustice
Wheelers statement in Dwy v. Connecticut Company (1915): The court best serves the law
whichrecognizesthattherulesoflawwhichgrewupinaremotegeneralmay,inthefullnessof
experience, be found to serve another general badly, and which discards the old rule when it
finds that another rule of law represents what should be according to the established and
settled judgment of society, and no considerable property rights have become vested in
reliance upon the old rule. It is thus great writers upon the common law have discovered the
sourceandmethodofitsgrowth,andinitsgrowthfounditshealthandlife.Itisnotandshould
notbestationary.Changeofthischaractershouldnotbelefttothelegislature.
Cardozo himself says, There are few rules; there are chiefly standards and degrees. It is a
questionofdegreewhetherthelawwhichtakesmypropertyandlimitsmyconductimpairsmy
libertyunduly.Heclaimsthatwherethecontroversyturnsupontheapplicationofprinciples
of the rule of law to the facts, as is the case in the bulk of court business, the judicial
processis a process of search and comparison, and little else, and it leaves untouched
jurisprudencealthoughitmaygiveafalseimpressionthatthereisuncertaintyinthelawand
of free discretion of the judge. There may be a difference of opinion between judges, yet
jurisprudence remains untouched, however, regardless of the outcome. Still, one must be
wary of the unavoidable fact that judges are human beings hence subject to subconscious or
unconscious likes and dislikes, predilections and the prejudices, the complex of instincts,
which make the man Indeed, nothing is better known that man bends reason to suit his
passions, many of them base, and with good intentions according to his naturally prejudiced
Page11of11

assessment of his motives. So we are referred to Justice Marshalls idealistic statement in

OsbornevBankoftheUnitedStates,9Wheat.738,866,thatJudicialpowerisneverexercised
forthepurposeofgivingeffecttothewillofthejudge;alwaysforthepurposeofgivingeffect
tothewillofthelegislature;or,inotherwords,tothewillofthelaw.
Nonetheless,CardozoadvisesustorememberJamesHarveyRobinsonswarningthatWeare
constantly misled by our extraordinary faculty of rationalizingthat is of devising plausible
arguments for accepting what is imposed upon us by the traditions of the group to which we
belong.Weareabjectlycredulousbynature,andinstinctivelyaccepttheverdictsofthegroup
weareeverandalwayslisteningtothestillsmallvoiceoftheherd.
These profitable rationalizations are convenient not only to the progression (or regression) of
society, butto the dominant interests of the power elite served by theorganized bar that has
placed a virtual stranglehold on civilization in every walk of life. Judicial interpretation of an
independent judiciary is the lifeblood of the English common law i.e. law common to the
Englishlegalprofession,amonopolythatlegallyextractsafeeateveryturn.

(9 MIAN\I BEACH
MEMORANDUM
TO: Land Use and Development Committee
FROM: Jose Smith, City Attorney
Gary M. Held, First Asst. City Attorney
DATE: June 6, 2011
SUBJECT: DISCUSSION ON THE OCEAN BEACH HISTORIC DISTRICT R-PS4 ZONING
AMENDMENT
The City Attorney's Office was requested to review the proposed amendment to
determine whether it violated spot zoning. In addition, after further consideration, we
evaluated whether the proposed amendment violated principles of equal protection. In
both instances, the conclusion is that while we have a concern that not all properties
within the zoning district will benefit from the proposed amendment, no violation of spot
zoning or equal protection should result from its adoption.
Spot zoning:
Florida's Third District Court of Appeal ("DCA") has cited approvingly the following
explanation of spot zoning: .
The definition of spot zoning is well established: Spot zoning is the name
given to the piecemeal rezoning of small parcels of .Iand to a greater
density, leading to disharmony with the surrounding area. Spot z.oning is
usually thought of as giving preferential treatment to one parcel at the
expense of the zoning scheme as a whole.
Further, the Third [DCA] detailed spot zoning as: [A] rezoning which
creates a small island of property with restrictions on its use different from
that of surrounding properties-solely for the benefit of a particular property
owner.
In characterizing the elements of spot zoning, a spot zoning challenge
typically involves the examination of the following: 1) the size of the spot;
2) the compatibility with the surrounding area; 3) the benefit to the owner
and 4) the detriment to the immediate neighborhood.
Bird-Kendall Homeowners Ass'n v. Metro. Dade County Bd. of County Comm'rs, 695
So. 2d 908, 910, n.1 (Fla. 3d DCA 1997) (citations omitted).
Attorneys for the property owner proposing the residential project that has resulted in
this proposed amendment have submitted a legal memorandum that analyzes the
amendment under this last test, suggesting that no spot zoning arises from this
lUDC#76
June 6,2011
Land Use and Development Committee Meeting
RPS-4 Zoning District Amendment - Proposed Modifications to Current Height Restrictions
Page 2 of4
proposal. We have no dispute with the overall n l ~ s s and conclusion reached in that
memo.
A comprehensive explanation of spot zoning is found in an article published in the
American Law Reports (ALR), which describes the tests courts use in evaluating spot
zoning:
There is no, precise formula for determining whether the zoning or
rezoning of a particular parcel constitutes illegal spot zoning. As a
threshold matter, the courts have generally noted that a parcel cannot be
too large per se to preclude a finding of illegal spot zoning, nor can it be so
small that it mandates a finding of illegal spot zoning. One court, for
example, found illegal spot zoning where the reclassified parcel was 635
acres in an affected area of 7,680 acres. Although the courts invariably
evaluate the size of the parcel in question, they have made clear that the
size of the parcel in question is not alone determinative of illegal spot
zoning. Nor does the reclassification of more than one parcel negate the
possibility of finding illegal spot zoning. Courts have invalidated zoning
amendments after finding that a multiple-parcel reclassification was a
subterfuge to obscure the actual purpose of special treatment for a
particular landowner.
The most widely accepted tests for determining illegal spot zoning,
sometimes stated in combination, sometimes separately, are whether the
zoning of the parcel in question is in accordance with a comprehensive
zoning plan; whether'the zoning of the subject parcel is compatible with
the uses in the surrounding area; and whether the zoning of the subject
property serves the public welfare or merely confers a discriminatory
benefit on the owner of the property. These criteria are flexible and
provide guidelines for jUdicial balancing of interests.
"Determinqtion whether zoning or rezoning of particular parcel constitutes illegal spot
zoning," 73 A.L.R.5th 223 (originally published 1999) (Citations and footnotes omitted).
/
Using the "most widely accepted" tests from the ALR article, the proposed amendment
is in accordance with the City's comprehensive zoning plan, is compatible with the uses
in the surrounding area, and serves the public welfare, as explained in both Mr. Del
Vecchio's memorandum, and the staff report. Based upon these factors, and taking into
consideration the analysis by the property owner's attorneys, we do not believe it likely
that the proposed amendment will be considered spot zoning.
Equal protection:
While likely not spot zoning, some property owners within the RPS-4 district will benefit
from this amendment, and others will not. As one court recently explained:
LUDC#77
._-:
June 6,2011
Land Use and Development Committee Meeting
RPS-4 Zoning District Amendment - Proposed Modifications to Current Height Restrictions
Page 3 of4
[I]f [the government] permits some [persons to have a right], then it must
PE?rmit all citizens to have an equal right unless there is a reason
substantially related to the pUblic health, safety, morals and welfare of the
community which justifies unequal treatment under the law. Equal
protection of the governed is the bedrock of constitutional government.
Without it, government fails.
Orange County v. Costco Wholesale Corp., 823 So.2d 732 (Fla. 2002) (quoting the
DCA, which had quashed an ordinance establishing a 5,000 ft. distance separation
between liquor stores; the Florida Supreme Court then reversed the DCA, upholding the
ordinance on rational basis analysis).
As the proposed amendment does not involve a suspect classification or fundamental
right, according to the U.S. Eleventh Circuit Court of Appeals, it should also be
evaluated under the rati o"naI basis test. Haves v. City of Miami, 52 F.3d 918, 921-22
(11
th
Cir. 1995) (upholding disparate treatment between houseboats located in different
water bodies of the city). As the Haves court explains, the rational basis test involves
the following analysis:
The first step in determining whether legislation survives rational-basis
scrutiny is identifying a legitimate government purpose - a goal - which the
enacting government body could have been pursuing; The actual
motivations of the enacting governmental body are entirely irrelevant.
Moreover, the Equal Protection Clause does not require government
decision makers to articulate any reason for their actions.
The second step of rational-basis scrutiny asks whether a rational basis
exists for the enacting governmental body to believe that the legislation
would further the hypothesized purpose. "The proper inquiry is concerned
with the existence of a co'nceivably rational basis, not whether that basis
was actually considered by the legislative body." As long as reasons for
the legislative classification may have been considered to be true, and the
relationship between the classification and the goal "is not so attenuated
as to render the distinction arbitrary or irrational," the legislation survives
rational-basis scrutiny.
Id. (citations omitted).
Based upon the memoranda submitted by the Administration and Mr. Del Vecchio, the
proposed amendment seeks to encourage compatible residential deyelopment in the
RPS-4 district, recognizing that 100 feet in height is necessary for such a development
to be financially feasible. The amendment does not extend to new hotel structures,
recognizing that such new hotel structures reaching 100 feet in height could create
impacts adverse to the neighborhood's residential character that a residential structure
of the same height would not create. The proposed amendment would protect the
subject area by limiting the scale of future hotel uses to that permitted by existing zoning
lUDC#78
June 6,2011
Land Use and Development Committee Meeting
RPS-4 Zoning District Amendment - Proposed Modifications to Current Height Restrictions
Page 40f4
regulations. Taking these factors into consideration in a rational basis test analysis,
these are goals that the City Commission can pursue, and it is conceivable that the
proposed ordinance would further these purposes. Thus, rational basis analysis is
satisfied, and it is reasonable to conclude that the proposed amendment is not likely to
be found to be violative of q u ~ protection.
GMH/s
F:\ATTO\HELG\Ordinances\RPS-4 Apartments\Jun 2011 RPS4 Heights - CAO MEMO.doc
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