05-2387 & 05-2386 MARINA GRANDE V. FORTUNA

SUPREME COURT CASES

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State: Florida

Court: Florida Third District Court

Docket No: 05-2387 & 05-2386 MARINA GRANDE V. FORTUNA

Case Date: 04/26/2006

Preview:IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT JANUARY TERM, A.D. 2006 ** ** ** ** ** ** ** Respondents. ** LOWER TRIBUNAL CASE NOS. 04-417 & 04-416 CASE NO. 3D05-2387

MARINA GRANDE NORTH MIAMI BEACH LLC and CITY OF NORTH MIAMI BEACH, Petitioners, vs. FORTUNA SMUKLER, BERNARD SCHUGAR, CAROL McMARTIN and THE NORTH MIAMI BEACH CITIZENS COALITION, INC.,

CONSOLIDATED: 3D05-2386

Opinion filed April 26, 2006. On Petition for Writ of Certiorari to the Circuit Court Appellate Division for Miami-Dade County, Jose M. Rodriguez, Dennis J. Murphy, and David C. Miller, Judges. Howard B. Lenard, City Attorney, and Miriam Besinger, Assistant City Attorney; Bilzin Sumberg Baena Price & Axelrod and Stanley B. Price and Robert L. Krawcheck, for petitioners. W. Tucker Gibbs, for respondents. Before FLETCHER and SHEPHERD, JJ., and SCHWARTZ, Senior Judge. ON MOTION FOR REHEARING PER CURIAM. The petitioners in these two consolidated cases sought from this court a writ of certiorari quashing the decision of the circuit court, appellate division, which quashed a rezoning of a

parcel of property in the City of North Miami Beach. the petition for the writ.

We denied

The petitioners have now moved for

rehearing, which motions we deny, although we do set out below our reasoning for our denials. On May 26, 2004, TCY Limited, Inc. (predecessor to Marina Grande North Miami Beach LLC) requested a rezoning of (and site plan approval for) the subject property, from the existing B-3 Intensive District. Business District to PUD Planned Unit Development

The rezoning and the site plan ultimately received The project approved was proposed to be

City Council approval.

developed on 6.32 acres of land, adjacent to 8.34 acres of water body, and was to consist of two multi-family, 24-story high-rise condominium towers (and a 90 boat-slip marina). Fortuna Smukler, et al., successfully The respondents the City's

challenged

rezoning and site plan approval in the circuit court appellate division. certiorari motions. The issue revolves around the project density. In arriving TCY in and the court, City and then unsuccessfully up with sought

this

followed

rehearing

at the number of dwelling units that it ultimately approved the City included in its calculations not only the 6.32 acres of land, but also the 8.34 acres of water body. This usage of a

water body to calculate the density, thus the number of units permitted, conflicts with Article II, section 24-22,

2

Definitions, of the City's Land Development Code, which defines "density" as: "The number of dwelling units divided by the number of acres lot, excluding internal roads bodies. Permitted density expressed as dwelling units per [e.s.] permitted, within the and water is always net acre."

The circuit court, in its certiorari review, (brought there by Smukler, et al.) recognized the City's improper use of the water body in calculating the City's density approval, stating: "[T]he City Council committed error by failing to exclude the water areas contained within the site plan."

The

circuit

court

thus

applied

the

correct

law.

Accordingly the motions for rehearing are denied.

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