SUNSET LAND ASSOCIATES

v.

THE CITY OF MIAMI BEACH

Before: WALSH, TRAWICK and REBULL, JJ.

WALSH, J.

Petitioners, Sunset Land Associates, LLC ("Sunset") and SH Owner, LLC ("SH") (collectively the "Petitioners"), seek to quash a March 20, 2019 Order of the Board of Adjustment (the "Board") of the City of Miami Beach (the "City"). ¹ The Board affirmed the City Planning Director's determination that Beach Towing Services, Inc. ("Beach Towing") may continue to use the real property located at 1349 Dade Boulevard, Miami Beach, Florida (the "Subject Property"), for its automobile storage and towing service operation, as a legal non-conforming use (the "Administrative Determination").

STANDARD OF REVIEW

Certiorari review by the circuit court requires a determination as to whether: (1) procedural due process was accorded, (2) the essential requirements of the law were observed; and, (3) the administrative findings and judgment were supported by competent substantial evidence. City of Deerfield Beach v. Vaillant, 419 So. 2d 624, 626 (Fla. 1982). We find in this instance that the lower tribunal accorded procedural due process, observed the essential requirements of the law, and the Administrative N 1 The Board re-executed the Order on March 25, 2018. [*2] Decision, with accompanying Order, is supported by competent substantial evidence and deny this Petition.

FACTS

For more than 33 years, since at least 1986, Beach Towing has been operating an automobile storage and towing company at the Subject Property. When Beach Towing was first established, the Subject Property was zoned C-6 ("Intensive Commercial District"). On October 1, 1989, C-6 was rendered obsolete when the City adopted City Ordinance 89-2665, rezoning the property CD-2 ("Commercial Medium Intensity"). From 1989 until the present, Beach Towing has had yearly certificates of occupancy and use approved as legally nonconforming uses and has continued to operate without interruption.

Since the zoning changes eliminating the C-6 designation, the character of the neighborhood has changed. Medium density residential development and mixed-use development have flourished. The City very recently approved the Petitioner's fivestory mixed-use project containing both residential and commercial uses. The Petitioners' Subject Property is located several hundred feet away and across the street from Beach Towing's automobile storage and towing service operation.

ARGUMENT

The gist of this Petition for Writ of Certiorari is that Beach Towing's automobile storage and towing company was never legal under the City's then- [*3] existing code, and therefore, its continued nonconforming use is illegal. According to Petitioners, Beach Towing did not operate as a permitted, nonconforming use, but rather as a conditional use. The Petitioners claim that because Beach Towing's automobile storage and towing service operation was never approved as a conditional use under the Former Code, it was not legally established prior to the adoption of the Present Code.

The Petitioners contend that the City violated the essential requirements of the law when it concluded that Beach Towing's automobile storage and towing service operation constituted a legal use. The Petitioners further contend that after reaching this conclusion, the City violated the essential requirements of law in failing to sunset Beach Towing's use, even if it was originally established as a legal nonconforming use under the Present Code.

Beach Towing responds that it never operated as a conditional use, but rather, as a legally nonconforming use, originally permitted within Districts C-6 and, by reference, C-5. And since Beach Towing does not occupy "vacant land," Miami Beach's sunsetting provisions do not apply to it.

ANALYSIS

To address these issues, we must examine the plain language and interplay between Miami Beach's then-existing and current city code.

Present Code section 114-1 (Definitions) defines a nonconforming use as: [*4] a use which exists lawfully prior to the effective date of these land development regulations and is maintained at the time of and after the effective date of these land development regulations, although it does not conform to the use restrictions of these land development regulations.

Present Code section 118-390(b) defines the term "nonconformity" as "a use, building, or lot that does not comply with the regulations of this article. Only legally established nonconformities shall have rights under this section." (emphasis added). Present Code section 118-390(d)(3) defines "legally established" to include, "[a]n existing use which conformed to the code at the time it was established." Thus, the legal question presented in this Petition -- whether Beach Towing was and is operating as a legally nonconforming use -- depends on whether Beach Towing's use of the Subject Property existed lawfully from its inception under the prior C-6 and C-5 zoning districts.

Pre-1989 zoning code district C-6 (Intensive Commercial District), the zoning district within which Beach Towing operated, was enacted to address the following purpose:

A. DISTRICT PURPOSE. This is a utilitarian district characterized by sales, storage, repair, processing, wholesaling and trucking activities and shall not include any residential uses. Former Code section 6-13 A. The C-6 designation set forth a list of permitted uses, including: [*5] B. USES PERMITTED
1. Any non-residential use permitted in C-5 District except those uses listed as conditional uses. (emphasis added). Former Code section 6-13 B.1.

Thus, a non-residential use permitted in the C-5 (General Business District) was permitted in the C-6 district. Turning to the purpose of the C-5 district, the code states:

A. DISTRICT PURPOSE. This is a mixed use district which permits high density residential, retail, and light and heavy service commercial development. Former Code section 6-12 A. Included within the C-5 permitted uses was:

20. Storage garages, automobile and truck storage within an area enclosed by an opaque masonry wall or structural wood fence not less than 6 feet in height. Such wall or fence shall totally screen garage and work area from public view. Former Code section 6-12 B.20.

The City permitted Beach Towing to operate within district C-6, which included its permitted use for "automobile and truck storage" within district C-5.

By the plain language of section 6-12 C-5(B)(20), Beach Towing's storage facility fits within the defined permitted use. The Subject Property land is being used to store cars and trucks. The Subject Property is a walled (by a 6-foot masonry wall), paved lot and buildings used for the storage of trucks and automobiles, which is precisely how Former Code section C-5(B)(20) defined its permitted use: "Storage garages, automobile and truck storage within an area enclosed by an opaque masonry wall...." Cars and trucks are towed to the Subject Property where they are stored [*6] until their retrieval or demise. The record further reflects that the Subject Property holds a contract with the Miami Beach Police Department for the storage of vehicles seized incident to criminal activity or illegal parking.

Despite operating within the plain language of the provision, the Petitioners rely upon the exception contained in the second part of Former Code section 6-13 C-6 (B)(1), which provided that one of the listed permitted uses in the C-6 district was "[a]ny non-residential use permitted in C-5 district except those uses listed as Conditional Uses." (emphasis added). A subsequent section of C-6, upon which Petitioners rely heavily, addresses conditional uses:

Former Code section 6-13 C-6(B) provides that:

20. The following uses may be permitted as conditional uses:

i. Uses not listed above which are similar in character to one or more permitted uses, and which would not be inappropriate in the district. (emphasis added).

Petitioners argue that Beach Towing's use is not the same as, but rather, "similar in character" to an "automobile and truck storage" facility, and therefore, required a conditional use permit prior to 1989. Petitioners have seized upon language contained in the current opinions of the Planning Director that towing uses are "consistent with" and "related to" the truck and automobile storage land use permitted by then-existing C-5 district. Relying upon Former Code section 6-13 C- 6 B(20)(i), above, Petitioners argue that a towing and storage company is "similar [*7] in character" to a storage garage, and therefore, Beach Towing was illegally continuing to operate as a conditional use, rather than a legally nonconforming use.

We disagree.

First, as pointed out above, Beach Towing's land use falls within the plain language of Former Code section 6-12 C-5 (B)(20). Second, Petitioners urge strict construction to deprive the property owner of its use, while binding authority compels us to apply the converse principle.

"Zoning laws are in derogation of the common law and, as a general rule, are subject to strict construction in favor of the right of a property owner to the unrestricted use of his property." Mandelstam v. City Comm'n of City of S. Miami, 539 So. 2d 1139, 1140 (Fla. 3d DCA 1983) (emphasis added).

Since zoning regulations are in derogation of private rights of ownership, words used in a zoning ordinance should be given their broadest meaning when there is no definition or clear intent to the contrary and the ordinance should be interpreted in favor of the property owner. Rinker Materials Corp. v. City of North Miami, 286 So. 2d 552, 553 (Fla.1973) (emphasis added). Under this broad interpretation favoring property owners, "storage garages" must be construed in favor of Beach Towing, and thus no conditional use permit was required under the Former Code, because automobile storage and towing service operations were a permitted use in both the C-5 or C-6 districts. [*8] Further, although the word "towing" is not contained in districts C-5 or C-6, this does not prohibit a towing company from operating its car storage on the land zoned within C-5/C-6. “Towing" occurs offsite, while automobile and truck storage occurs on the land. Moreover, 6-12 C-5(B)(20), defining car and truck storage use, concludes with the following statement: "Such wall or fence shall totally screen garage and work area from public view." Former Code section 6-12 C-5(B)(20) does not address what work might occur in an “automobile and truck storage," but language addressing a "garage and work area" means that the City well understood that storage or work would be done, so long as the storage or work area was shielded from public view. We find no error in the City's determination that Beach Towing's automobile storage and towing service operation fell within Former Code section 6- 12 C-5(B)(20), "automobile and truck storage," permitted within C-6(B)1.

The City and Beach Towing presented competent substantial evidence to support the conclusions below. Both the present and former City Planning Directors have consistently interpreted the City Code for more than 30 years to permit multiple storage and towing companies within districts C-5 and C-6 of the earlier Code. Our determination that this interpretation was correct is further supported by a City decision made in a 1987 case involving another Miami Beach towing company, Magnum Towing, in which the City affirmed that automobile storage and towing service operations were a permitted use in the C-5 zoning district. [*9] In addition, the 1987 Planning Director Kurlancheek (who now, after purportedly being hired by the Petitioners as a planning expert, gives a different interpretation), then opined that towing services were related to storage of automobiles, permitted within C-5 and C-6 zoning designations. Accordingly, automobile storage and towing service operations were permitted in the C-6 district, because they were a permitted use in the C-5 district.

We further find that Beach Towing's automobile storage and towing service operation did not sunset under the Present Code. Present Code section 118-391 states in part that:

In any district where vacant land is being used as a nonconforming use, and such use is the main use and not accessory to the main use conducted in a building, such use shall be discontinued not later than two years from the effective date of these land development regulations. (emphasis added).

The record contains substantial competent evidence establishing that the Subject Property is not being used as "vacant land." We fail to see how storage of cars and trucks on paved land surrounded by a six-foot wall can fairly be characterized as "vacant land." Accordingly, Beach Towing's use of its property for an automobile storage and towing service operation does not sunset under the Present Code.

Based upon the above analysis, the Petition for Writ of Certiorari is hereby

DENIED.

TRAWICK and REBULL, J.J. concur.