HomeMy WebLinkAboutReso 2008-1222
RESOLUTION NO. 2008 - l.:t.:>.:;)...
A RESOLUTION OF THE CITY COMMISSION OF THE
CITY OF SUNNY ISLES BEACH, FLORIDA, APPROVING
THE RECOMMENDATION OF THE CITY MANAGER TO
IMPLEMENT A VOLUNTARY TIME EXTENSIONS
PROGRAM FOR DEVELOPMENT APPROVALS AND
TRANSFER OF DEVELOPMENT RIGHTS; PROVIDING
THE CITY MANAGER WITH THE AUTHORITY TO
ESTABLISH ADMINISTRATIVE REGULATIONS TO
IMPLEMENT THE EXTENSION REQUESTS;
AUTHORIZING THE CITY MANAGER TO DO ALL
THINGS NECESSARY TO EFFECTUATE THE TERMS OF
THIS RESOLUTION; PROVIDING FOR AN EFFECTIVE
DATE.
WHEREAS, its workshop of January 16, 2008, the City Commission discussed the City
Manager's proposal to implement a plan to govern voluntary time extensions for high-rise
condominium developments; and
WHEREAS, the proposed plan allows developers to extend site plan approval
timeframes by making partial payments on bonuses and transfer of development rights (TDRs);
and
WHEREAS, in particular, the proposed plan provides for first and second year
extensions and for the accumulation of interest on unpaid balances; and
WHEREAS, the City Commission wishes to provide the City Manager with the
authority necessary to establish administrative regulations to govern voluntary time extensions
for high-rise condominium developments; and
WHEREAS, this plan will be administered administratively, as the creation of an
Administrative Regulation makes it perfunctory in nature.
NOW THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE
CITY OF SUNNY ISLES BEACH, FLORIDA, AS FOLLOWS:
Section 1. Approval of V oluntary Time Extensions Program. The City Commission hereby
approves the recommendation of the City Manager to implement a Voluntary Time Extensions
Program for Development Approvals and Transfer of Development Rights.
Section 2. Authorization of City Manager. The City Manager is hereby authorized to
establish Administrative Regulations to implement the Extension requests.
Section 3. Further Authorization of City Manager. The City Manager is further authorized to
do all things necessary to effectuate the terms of this Resolution.
R2008- Voluntary Time Extensions for High-Rise Policy
Page I of2
Section 4.
Effective Date. This Resolution will become effective upon adoption.
PASSED and ADOPTED this 21st day of February 2008.
ATTEST:
~.A~
Jane A. Hines, CMC, City Clerk
APPROVED A~TO FORM
AND LEGAL SltF IE CY
Moved by: C.--O~ P'R.~2-I~
Second by: C'.-.b~ <;c..\-io LL
VOTE: 3~ \- \
Mayor Edelcup
Vice Mayor Thaler
Commissioner Brezin
Commissioner Goodman
Commissioner Scholl
AJ V (Yes)_CNo)
f\'k::>S~Y es )_CNo)
V (Yes)_CNo)
_(Yes)--.0No)
-0Yes)_(No)
R2008- Voluntary Time Extensions for High-Rise Policy
Page 2 of2
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Agenda Item lb~
Date
'2.. 2-1- b X'
OF SU '"
TO:
FROM:
DATE:
RE:
City of Sunny Isles Beach
18070 Collins Avenue
Sunny Isles Beach, Florida 33 I 60
(305) 947-0606 City Hall
(305) 949-3 II 3 Fax
(305) 947-2150 Building Department
(305) 947-5107 Fax
City Commission
Norman S. Edelcup, Mayor
Lewis J. Thaler. Vice Mayor
Roslyn Brezin. Commissioner
Gerry Goodman, Commissioner
George "Bud" Scholl, Commissioner
A. John Szerlag. City Manager
lIans Ottino!, City Attorney
.Jane A. Hines. City Clerk
MEMORANDUM
February 21, 2008
The Honorable City comrion
A. John Szerlag, City Manager
Proposed Alternative Policy to Govern Voluntary Time Extensions for High-
Rise Condominium Developments
Background
At its January 16, 2008 workshop, the City Commission (along with members of the
development community) discussed the attached proposal that would govern voluntary time
extensions for high-rise condominium developments. Simply put, a developer could extend site
plan approval timeframes by making a partial payment on bonuses and transfer of development
rights (TDRs). As originally discussed, this program would enable a developer to have one extra
year to make full payment to the City on TDRs and bonuses, so long as a partial payment was
remitted. An additional one-year extension would also be available under the same partial
payment terms. In both cases, the interest rate on the unpaid balance would be 7.5% annually.
There were some other proposed conditions. In bullet point format, the proposed policy
incorporated the following elements:
A. First Year Extension. Fifteen Percent (15%) of balance owed City, or Five Hundred
Thousand Dollars ($500,000), whichever is greater. Interest rate on unpaid balance is
7.5% annually.
B. Second Year Extension, if applicable. Same conditions as stated above. In the
aggregate, this means a developer would have paid 30% of the balance owed City, or
One Million Dollars ($1,000,000), whichever is greater.
C. The Developer will forfeit Vested Rights/Zoning Estoppels - refer to attached
memorandum from City Attorney Hans Ottinot.
D. The site in question will be maintained to look more like a park than a construction
zone and will include installation of decorative fencing.
Agenda Item --.J 0 f-
Date 2 - 2(- 0 ~
Commission - Voluntary Time I':xtensions lligh Rise Conu Memo 2
The Honorable City Commission
February 21, 2008
Page 2
E. Within 60 days notice by the City, the developer will underground all utilities or pay
the City its pro-rata share to do so.
Based on our discussion with the developers and their representatives, I believe items C, D, and
E are acceptable. However, there was a concern that the time extensions and amount of partial
payment to receive the extension were not in sync with the development community's
perspective of a reasonable transaction.
Current Status
During the next five (5) years, our capital revenues from bonuses and TORs are estimated to be
$21. 7 Million Dollars. If we do not receive a preponderance of this funding, we will either have
to slow down our aggressive capital campaign, or find alternative funding sources to continue
these projects.
From a developer's perspective, they are cognizant that the makeup of a City Commission
changes. Thus a variance for a development that was granted in 2006 may not be viewed as
favorably in 2009 or 2010. Additionally, zoning regulations may change, which could have the
potential of downsizing density, compared to what is currently allowed. It may also be easier to
sell condominium units for a project that has site plan approval, compared to one that does not.
All in all, what has salience is that extending the site plan review process provides certainty that
the project can be developed as originally approved.
Alternative Policy for V oluntarv Time Extensions
Given the above, you may wish to consider an option that would essentially double the site
approval timeframe while keeping the partial payment constant. This means that a two-year
extension would carry a fee of 15%, or Five Hundred Thousand Dollars ($500,000), whichever is
greater. A third year extension could automatically be purchased for 15% of the balance owed
City, or Two Hundred Fifty Thousand Dollars ($250,000), whichever is greater. In addition, a
fourth year extension could be purchased for 7.5% of the balance owed City or Two Hundred
Fifty Thousand Dollars ($250,000), whichever is greater. In all cases, the interest rate on the
unpaid balance would be 7.5% annually.
There are some other proposed conditions. In bullet point format, it all looks like this:
A. Two-Year Extension. Fifteen percent (15%) of balance owed City, or Five Hundred
Thousand Dollars ($500,000), whichever is greater. Interest rate on unpaid balance is
7.5% annually.
B. Third Year Extension, if applicable. 7.5% of balance owed City, or Two Hundred
Fifty Thousand Dollars ($250,000), whichever is greater.
Commission - Voluntary Time Extensions lligh Rise Cond i\lcmo 2
The Honorable City Commission
February 21,2008
Page 3
C. Fourth Year Extension, if applicable. Same conditions as second year extension. In
the aggregate, this means a developer would have paid 30% of the balance owed City, or
One Million Dollars ($1,000,000), whichever is greater.
D. The developer will forfeit vested rights/zoning estoppels - refer to attached memo from
City Attorney Hans Ottinot.
E. The site in question will be maintained to look more like a park than a construction
zone, and will include installation of decorative fencing.
F. Within 60 days notice by the City, the developer will underground all utilities or pay
the City its pro-rata share to do so.
G. Because the program is voluntary, it will be administered administratively.
In addition, if TDRs are owed by a private party and would otherwise expire during the
extension period, a fee of Ten Thousand Dollars ($10,000) will be paid to the City for
administrative costs of maintaining the TOR bank through the extension period.
Please feel free to contact me should you have any questions.
AJS/pw/iw
Attachment
cc: Hans Ottinot, City Attorney
Jorge L. Vera, Assistant City Manager, Service Division
Doug Haag, Assistant City Manager, Finance Division
Fernando Amuchastegui, Assistant City Attorney
Commission - Voluntary Time Extensions High Rise Cond Memo 2
TO:
FROM:
DATE:
City of Sunny Isles Beach
18070 Collins Avenue
Sunny Isles Beach, Florida 33160
(305) 947-0606 City Hall
(305) 949-3 I I 3 Fax
(305) 947-2150 Building Department
(305) 947-5107 Fax
City Commission
Norman S. Edelcup, Mayor
Lewis J. Thaler, Vice Mayor
Roslyn Brezin, Commissioner
Gerry Goodman, Commissioner
George "Bud" Scholl, Commissioner
A. John Szerlag, City Manager
Hans Ottino!, City Allorney
Jane A. Hines, City Clerk
MEMORANDUM
RE: Proposed Policy to Govern Voluntary Time Extensions for High Rise
Condominium Developments:
Executive Summary /Recommendation
Times are tough. And I propose that the City develop a voluntary program for developers to
extend site plan approval time-frames by making a partial payment on bonuses and transfer of
development rights (TDR). Specifically, this voluntary program would enable a developer to
have one extra year to make full payment to the City on TDR's and bonuses so long as a partial
payment was remitted. An additional one year extension would also be available under the same
partial payment terms. In both cases, the interest rate on the unpaid balance would be 7.5%
annually.
There are some other proposed conditions. And in bullet point format, it all looks like this;
.:. First year extension - 15% of balance owed City, or $500,000, whichever is
greater. Interest rate on unpaid balance is 7.5% annually.
.:. Second year extension, if applicable - same conditions as stated above. In the
aggregate, this means a developer would have paid 30% of the balance owed
City, or $1,000,000, whichever is greater.
.:. The developer will forfeit Vested Rights/Zoning Estopple - refer to attached
memorandum from City Attorney Hans Ottinot.
.:. The site in question will be maintained to look more like a park than a
construction zone, and will include installation of decorative fencing.
.:. Within 60 days notice by the City, the developer will underground all utilities or
pay the City its pro-rata share to do so.
Commission - Policy Voluntary Time Extensions High Rise Condo I>"~'- \1emo
24
l
I
A. John Szerlag
January 16,2007
Page 2
Current Status
With reference to payments of TDR's and bonuses, we currently employ a "Use it or lose it"
philosophy unless a developer can show good cause for extending time-frames. Allow me to
explain by example. Let's say we have a high-rise condominium project (call it Oui) that
generated the following slate of fees:
Paid at Development Approval Paid at permit
Site plan development fee $10,000 - 0 -
Bonuses - 0 - $1,155,700
TDR - 0 - $3,749,268
10% ofTDR amount $374,926 (374,926)
Building Permit - 0 - $ 650,000
Impact fees - 0 - $ 415,000
Total $384,968 $5,595,042
The amount to be paid within three days of site plan approval by City Commission is $374,926.
The developer in our example has two years from City Council approval to pull a building permit
and pay the balance ofTDR's, bonuses and fees. This amount comes to $5,595,042.
Now, if the developer can show "good cause", the City Commission may grant an extension for
the developer to remit the balance of bonuses and TDR's. There are a number of reasons for
good cause; labor and/or material shortage, litigation, acts of nature. However, economics is not
a good cause. Thus a developer cannot get a time extension from the City Commission if the sole
argument is predicated on poor market conditions and/or inability to obtain financing. See
attached memorandum from City Attorney Hans Ottinot.
So, what options does a developer currently have if economics are the only reason for wanting a
time extension?
Using the above example, the developer has two options: walk away from his initial deposit
which means that site plan approval expires, or pay the balance of fees due the City. Please
Commission - Policy Voluntary Time Extensions High Rise Cond. D('''-'- "emo
25
A. John Szerlag
January 16, 2007
Page 3
know, however, that if financing is an obstacle for constructing the project, it will most likely be
an obstacle for making payment of bonuses and TDR's to the City.
Financial Impact on Capital Proiects
The preponderance of funds that we have forecasted for our five year Municipal Capital
Improvement Programs are underpinned by bonuses and TDR's. This means that if developers
start walking away from projects, the City is going to have to find alternative funding sources, or
delay project implementation. Please know that page 262 of our Budget forecasts Capital
Revenues of $13,267,636 in FY 2008/09 from two condominium developments. All in all, we
have forecast $21.7 million dollars during the next five years in revenues coming from bonuses,
and TDR's. The attached memorandum from Assistant City Managers Doug Haag and Jorge
Vera delve further into this matter.
Conclusion
I believe the City of Sunny Isles Beach and the development community have the same
objectives. We want site plan approved projects to occur in an expedient fashion. We want to
complete Municipal Capital Projects in an expedient fashion. We understand that the impact of
current real estate market conditions needs to be addressed in such a fashion as to benefit both
parties.
These objectives cannot be achieved within the confines of our current ordinance. Instead, a
voluntary program to allow for time extensions as identified at the top of this memo should be
implemented. And because the program is voluntary, it would be administered administratively.
Other arguments for administrative approval are that it will expedite the process making it more
efficient; and the voluntary program is strictly ministerial over a fixed time-frame. Of course, I
would advise the Commission whenever an extension was granted. Further, I recommend that
the Commission determine the time-frames that will allow me to grant these extensions. For
starters, I think this program should be in effect for all of calendar 2008.
Thank you.
AJS/iw
Attachments
cc: Hans Ottinot, City Attorney
Jorge L. Vera, Assistant City Manager, Service Division
Doug Haag, Assistant City Manager, Finance Division
Fernando Amuchastegui, Assistant City Attorney
Commission - Policy Voluntary Time Extensions High Rise Cond. DpH"l~ Memo
26
OF SU~
TO:
FROM:
DATE:
RE:
City of Sunny Isles Beach
] 8070 Collins Avenue, Suite 250
Sunny Isles Beach, Florida 33160
(305) 947-0606 City Hall
(305) 949-3113 Fax
(305) 947-2150 Building Department
(305) 947-5107 Fax
City Commission
Norman S. Edelcup, Mayor
Roslyn Brezin, Vice Mayor
Gerry Goodman, Commissioner
Lewis Thaler, Commissioner
George "Bud" Scholl, Commissioner
A. John Szerlag, City Manager
Hans Ottinot, City Allorney
Jane A. Hines, CMC, City Clerk
MEMORANDUM
The Honorable City Commission
A. John Szerlag, City Manager
Hans Ottinot, City Attorney ~
January 10, 2008
Extension of Time for Development Approvals and Transfer of Development
Rights
In preparation for the scheduled workshop to discuss requests for extension for
development approvals, this memorandum is written to discuss the legal standards to grant such
requests under the City Code and the legal issues that may arise if the City Commission requires
pre-payment of building permit fees as a condition for granting an extension of time for a
development approval.
I. BACKGROUND
Prior to the adoption of the Land Development Regulations, developers were required to
pull a building permit to commence construction of their development projects within one (l)
year of approval of the project. See, Ordinance 98-52, adopted on October 8, 1998. The one-
year time period to pull a building permit was established to eliminate the indefinite time period
that was afforded to development approvals under the County Code. Shortly after creating the
one-year time period, the City Commission realized that the one-year time period was unrealistic
because a developer generally needs more than a year to proceed with their approvals given
environmental, permitting, financing, presale requirements and other pertinent issues. As such,
in 2001, the City Commission amended the Code as a compromised solution between the City
and the development community to provide developers with at least two (2) years to pull a
building permit after receipt of a zoning approval from the City Commission. See, Ordinance
No. 2001-117, adopted March 15, 2001. At the time the Code was amended to provide the two-
year period, some policy concerns were raised by members of the City Commission. One
member of the City Commission "expressed concern[ s] about the difficulty for developers, who
had obtained a zoning approval.....to successfully obtain a building permit within a two-year
period." Another member of the City Commission expressed concerns about "development
approvals being extended without the knowledge of the City Commission under the Code
27
inherited from the County." See, attached minutes from Commission meeting in March 15,
2001.
In 2002, the City Commission adopted the Land Development Regulations ("LDRs") to
govern land use in the City. In adopting the LDRs, the City Commission made some
fundamental changes to the City's development review process to spur the redevelopment of the
City. First, the City Commission completely eliminated the administrative site plan approval
process which the City inherited from Miami-Dade County. Members of the City Commission
were extremely unhappy with the administrative site plan approval process because development
projects were being approved at the administrative level, without a public hearing or notice to the
City Commission. Second, the City Commission incorporated the two-year time period for a
developer to pull a building permit to commence construction in the LDRs. See, Section 265-
11(L) of the City Code. The two-year time period was an important aspect of the City's
redevelopment plan because the County's administrative site plan approval process provided a
developer with an indefinite time-frame to pull a building permit. In other words, an
administrative site plan approval constitutes a development order in perpetuity. Conversely,
under the LDRs, a development approval becomes void automatically if the developer does not
pull a building permit within the aforementioned time-frame. Lastly, the City Commission
created a process under the LDRs to review and approve requests for extension of development
approvals filed by developers. Under this process, all extension requests must be reviewed and
approved by the City Commission at a public hearing.
Moreover, the legislative history of the LDRs demonstrates that the City Commission
was motivated by numerous factors when it adopted the two-year time period to "use or lose" a
development approval. However, two main factors are more prevalent in the legislative history
than others. The two factors are the redevelopment of the City and the elimination of speculative
permits. Members of the City Commission believe that the redevelopment of the City would
have been hampered by speculative permits because those who seek speculative permits have no
intention to move forward with the project unless the project is sold or transferred to another
developer.
As discussed below, the City Commission created a legally sufficient process to review
requests for extension of development approval. It is important to note that this process has
never been challenged in court by a developer. This process is consistent with the law and
should remain in place.
II. DISCUSSION OF LEGAL ISSUES
A. Legal Standards to Grant Extensions Under the City Code
The City Commission is required to review requests for extension of time on a case-
by-case basis under the City Code. Id. See, Section 265-11 (N)( 4) of the City Code (emphasis
added). More precisely, the City Commission may grant an extension of a development approval
if the developer clearly "establishes good cause for the extension and that the need for the
extension is based substantially on events or OCcurrences beyond the control of the developer.."
2
28
The question then IS what constitutes good cause to warrant an extension of a development
approval.
The City Code does not contain a definition for the term good cause. There are no cases
in Florida in which good cause is defined in the context of extensions of development approvals.
However, the Florida Supreme Court has defined the term good cause in the context of a
criminal case. According to the Supreme Court, good cause is "a substantial reason, one that
affords a legal excuse, or a cause moving a court to its conclusion, not arbitrary or contrary to
all the evidence, and not mere ignorance of law, hardship on petitioner, and reliance on
[another's] advice"...Davis v. State, 887 So. 2d 1286, 1289 (Fla. 2004) (emphasis added).
Clearly, based on the aforementioned definition, hardship on the petitioner alone is not sufficient
to establish good cause. Indeed, the Supreme Court emphasized that good cause "is based on the
peculiar facts and circumstances of each case." Id.
In granting extensions for development approvals, the City Commission has reviewed the
particular facts of each case in granting or denying an extension. For example, the City
Commission found good cause to grant an extension where a developer requested more time to
pull a building permit in order to resolve an objector's lawsuit. See, Attached Letter from
Attorney Representing the Regalia Development Project. The City Commission also found good
cause where permitting delays from other agencies prohibited the developer from proceeding in
an expeditious manner to obtain a building permit within the two-year time period. See, Attached
Letter from Attorney Representing the Davinci Development Project. On the other hand, the City
Commission denied a request for an extension where the developer sought the extension based
solely on market conditions. See, Attached Letter from Comfort Homes Development.
Essentially, the precedents show that economic reasons have not been a basis for the City
Commission to grant an extension for a development approval.
B. Inability to Obtain Financing or Market Condition Is Not Good Cause
In addition to demonstrating good cause to warrant an extension of a development
approval under the City Code, a developer has to demonstrate that the need for the extension is
based substantially on events or occurrences beyond the control of the developer. The City Code
does not describe all the occurrences beyond the control of the developer. However, the inability
to obtain financing or market condition does not constitute good cause by itself under the City
Code. More precisely, Section 265-11 (N)(3) of the City Code provides that "the inability to
obtain financing, volatility in the economy and/or changes in the market conditions affecting a
project, two or more of these factors combined and/or in combination with other relevant factors,
may be sufficient as determined by the City Commission, to establish a need for the extension."
Thus, the inability to obtain financing and market conditions are only factors in determining
good cause. These factors must be combined with another factor in order to establish good
cause. For example, economic conditions combined with permitting delays may be sufficient
grounds to establish good cause.
By indicating in its Code that the inability to obtain financing or market condition does
not constitute good cause by itself, the City Commission made it abundantly clear that economic
reasons alone would not be sufficient to establish good cause to warrant an extension of a
3
29
development approval. In fact, the legislative history behind the aforementioned section of the
City Code makes clear that it was the intent of the City Commission to create a high bar to
establish good cause.
If the City Commission has a desire to grant extensions for economic reasons, the current
standards under the City Code do not permit such extensions. Moreover, the standards do not
permit the City to require prepayment of building permit fees in return for extensions of a
development approval. More importantly, there is no legal authority to support the prepayment
of building permit fees under the current standards. If the City Commission has a desire to
provide extensions exclusively for economic reasons on a fee basis, the Commission may create
a voluntary program which allows developers to seek extensions for economic reasons. This
program would co-exist with the current process to grant extensions for good cause. A
modification of the City Code would be required in order to start this program to ensure
consistency with the current standards.
c. Vested Rights or Zoning Estoppel
Vested rights are typically implicated when the government seeks to stop a development
project after the developer has spent substantial amounts of money to proceed with the
development project. Indeed, "the theory behind vested rights is that a citizen is entitled to rely
on the assurances and commitments of a zoning authority and if he does, the zoning authority is
bound by its representation." Monroe County v. Ambrose, 866 So. 2d 707 (Fla. 3rd DCA 2004).
A development approval cannot be revoked by the local government where vested rights have
been established. Hollywood Beach Hotel Company v. City of Hollywood, 329 So. 2d 10 (Fla.
1976) (holding that developer has vested property rights in continuation of development project
where the developer obtained a building permit).
In order to establish vested rights in Florida, a property owner or developer must
establish the following: "(1) in good faith reliance, (2) upon some act or omission of
government, (3) made such a substantial change in position or has occurred such extensive
obligations and expenses, and (4) that it would make it highly inequitable to interfere with the
acquired right." Id. At 710. Vested rights are generally triggered subsequent to the issuance of a
building permit. See, 35 AMJUR PFO 3d 385 (August 2003). Thus, even if a building permit is
not issued, a developer may seek vested rights if they are required to prepay the building permit
fees. Essentially, the doctrine of vested rights is a doctrine which attempts to establish fairness
in the development process.
Even if a developer is unable to establish vested rights to keep its development approval
alive, the developer may claim equitable estoppel to prevent the termination of its development
approval if they are required to prepay building permit fees. To sustain a claim of estoppel in
Florida, "there must be (I) a representation as to some material fact by the party estopped to the
party claiming estoppel; (2) reliance upon the representation by the party claiming estoppel; and
(3) a change in such party's position caused by his reliance on the representation to his
detriment." Monroe County v. Hemisphere Equity Realty, Inc., 634 So. 2d 745 (Fla. 3rd DCA
1994). The prepayment of building permit fees may be sufficient to raise the estoppel defense
against the City if the City seeks to terminate a development approval.
4
30
If the City Commission is willing to grant extensions based on prepayment of outstanding
building permit fees, the developer must waive the right to claim vested rights and equitable
estoppel. The waiver is necessary to ensure that the City has the right to terminate the
development approval if the developer does not pull a building permit upon the expiration of an
extension request.
D. Modification of the Land Development Regulations & Length of Extension
Section 265-3(B)(4) of the City Code provides that "an amendment to these LDRs shall
not affect, or be enforceable against, any development for which a development order was issued
prior to the effective date of said amendment." Essentially, a development order is exempt from
any new amendments which are passed subsequent to the approval of the development order. As
such, the City Commission must determine whether it is willing to exempt existing development
orders from any code modification in addressing the issue of extension of development approvals
for economic reasons. For example, the bonus payment provision was amended recently to
increase the bonus payment requirement from $35,000 to $72,000. Thus, the City Commission
may require compliance with the new standards as a condition for extending a development
approval.
Under the City Code, the City Commission has the authority to establish the length of an
extension request. The City Commission has not granted an extension request for more than six
(6) months under the current standards. In granting any extension for development approvals,
the City Commission should evaluate the impact that an extension may have on future
amendments to the City Code.
III. CONCLUSION
While the City Commission is seeking ways to assist the development community to
address the problems caused by market conditions, the City Commission cannot require the pre-
payment of building permit fees as a condition to grant an extension for a development approval
under the City Code. Under the City Code, a developer must establish good cause. Economic
reasons alone are not sufficient to establish good cause. If the City Commission wishes to seek
ways to help provide relief to the development community, I recommend the City Commission
create a voluntary program which provides developers with an opportunity to apply for an
extension at the administrative level if certain requirements are satisfied. These requirements
must include a waiver of the right to claim vested rights and equitable estoppel. This voluntary
program should not preclude a developer from applying for a good cause extensions under the
City Code.
cc: Fernando Amuchastegui, Assistant City Attorney
Jorge Vera, Assistant City Manager/Services
Doug Haag, Assistant City Manager/Finance
Robert Solera, Community Development Director
5
31
s....""'" ,,;dvgCi"'C~~ ~"'" 1S,2001
City of Sunny Isles Beach. Florida
8B. An Ordinance of the City Commission of the City of Sunny Isles Beach, Florida:
Amending Ordinance 98-52 to Revise the Time Limit from One Year to Two Years
Within \\'hich a Building Permit Must Issue for Any Variance, Special Exception, New
Use, Special Permit or Unusual Use Heretofore or Hereafter Granted; Providing for
Quarterly Notice in a l\ewspaper of General Circulation Within the City Limits for the
Two-Year Time Period; Providing for Administrative Relief Procedure from this
Ordinance, Providing for an Appeal to the City Commission; Providing for a Repealer;
Providing for Severability; Providing for an Effective Date.
(First Reading 2/22/01)
Action: City Clerk Brown-Morilla read the title and City Attorney Dannheisser presented
her report.
Public Speakers: \Villiam Lone; Gerry Goodman
Commissioner Iglesias expressed concern about the difficulty for developers, who had
recently obtained a zoning approval vvithin the last four or five months, to successfully
obtain a building permit within a two-year period.
Commissioner Turetsky asked why these decisions were being taken out of the hands of
the City Commission. City Attorney Dannheisser said that it was for the convenience of
the Commission and developers, \\rith the developer still having a right to appeal to the
City Conunission if they disagree 'with the staff decision on their vested rights appeal.
There was considerable discussion regarding the proposal.
Commissioner Turetsky repeated his objection to removing the decision from the City
Commission and Commissioner Morrow indicated that she was unc-omfortable with some
aspects of the proposal. City Attorney Dannheisser suggested that the motivation in the
proposal to have staff re\'iew the vested rights application, was to remove the burden from
the City Commission. Vice Mayor Kauffinan asked if under the current Code, can City
staff grant a developer, with a pre"ious approval, an administrative variance beyond what
the City Commission had approved. City Attorney Dannheisser said yes and explained.
Commissioner Iglesias moved and Vice Mayor Kauffinan seconded a motion to adopt
the ordinance. Ordinance No. 2001-117 was adopted by a roll can vote of 4-1 in
favor.
Vote:
Conunissioner Iglesias
Commissioner Morrow
Commissioner Turetsky
Vice Mayor Kauffinan
~1ayor Samson
yes
1!Q
yes
yes
m
4
32
STANL.EY El. PRICE:, P.A.
CIRE:CTDIAI. (30!!;1 360-e374
DIRECT F'Al( (30!51 3SI-2l:!C4
E-MAIL sprioe@bll2In.ccm
8,LZIN SUMBERG 8AENA PRICE: & AXELROD LLP
A F'ARTNE:RSI-IIP OF PROFESSIONAL ASSOCiATIONS
200 SOUTH e ISCA'rNE: BOu~e:VARC. SUITE: 2600. MIAMI, 1"1.01'tlOA 3:3131-5340
TE:l.EJOHONE: [:!lOtSl 374-75eO
r-MAIL.~ INFO@BILZIN.COM . WWW.BI1.2/N.COM
December 20, 2005
Hans Gttinot, Deputy Ci't)' Attorney
City of Sunny Isles Beach
17070 Collins Avenue
SUlmy Isles Beach, FL 33160
BY FAX
Re: La Mansion
Dear Mr. City Attorney:
Please accept this letter as our fannal request to modify the provisions of CiTy ResolUTion
No. 2005-757 (a copy of which isaltached hereto) to seek an extension of time to obtain bUilding
permits to up to and including June 1,2007.
As you are well aware, as a full parricipant in the last two years of legal chaIJenges by rhe
City of Golden Beach, as well as individual residents of both the City of Golden Beach and [he
City of Sunny Isles Beach, we have been unable to obrain appropJiate .financing during the
pendancy of said litigation, Based upon a series of Successful defenses to the various regal
challenges, om cliem is now in the position ro go forward to conSTruct its development appTOval
as approved by City Resolution No. 03-Z-75.
Last week, in furtherance of my clientls desire [0 go forward with this proJect. a fDrm<11
Applica'tion for The Transfer of Development Rights was filed with Mr. Jorge Vera, the City's
Zoning Administrator. In reviewing our file in regard to this maner, I am sllbmining a letter to
YOll dated October 30,2003 addressed to Mr. Jorge Vera which clearly indicates thenCltLITe of the
scrivener's error contained within the approved resolution in 2003, which erroneously indicated
the amount of square footage subject ro the Transfer of Developmem Rights Ordinance. I trust
this enclosure will aid you in resolving this scrivener's error at a public hearing.
1 thank you in advance for your kind counesy in regard to this matt~r and I wisb you and
YO~lr family a healthy and prosperous new year.
Cordially,
~
SEP/cb
Enclosure
Stanley B. Price
MJAMI %2604.1 74420138%
12/20/05 10:27 AM
33
- - ..-- - -- --..
. Greenberg
Traurig
Clifford A. Schulman
(305) 579-06/3
Dir~cl Fax: (305) 961-56) 3
E-Mail: ~chLlll1lanc@g{l~w.~o'n
October 29, 2007
VIA E-MAIL & US MAIL
Mr. Robert Solera
Community Development Director
City of Sunny Isles Beach
18070 Collins Avenue
Sunny Isles Beach, Florida 33160
Reo' Da Vinci/Property located at ]7]41 Collins Avenue / Request/or Extension of
Time/ Resolution No. 05-Z-99
Dear Mr. Sol era:
On behalf of Mully SB, L.L.c., (the "Applicant"), the developer of the proposed Da
Vinci residential project located at the above referenced address (the "Project"), we respectfully
submit this letter pursuant to your request for additional information regarding the reason for our
recent application for an extension of time to obtain a building permit for the Project, pursuant to
Resolution No. 05-2-99.
As stated in our original letter of intent requesting an extension of time, we have
experienced delays in the processing of our Coastal Construction Control Line ("CCCL") pennit
with the Florida Department of Environmental Protection ("FDEP"). In response to your request
for additional information in this regard, please find attached, as Exhibit "A", a copy of a
memorandum from Jason Seue of Coastal Systems International, Inc., summarizing the
permitting process to date with FDEP. Please note that simultaneous to our processing of the
CCCL permit with FDEP, we have been processing our building permit plans with the City of
Sunny Isles Beach. As is indicated on the timeline prepared by the project architect, attached as
Exhibit "B", the initial submittals to Miami-Dade Fire Rescue, DERM, and for dry run review at
the City were made in August of2006 and application for a full building permit was submitted in
April of 2007. As of this date, we have received the approval of all the various disciplines except
for the structural approval which we expect soon.
While City review of the building plans should be complete prior to the December 8,
2007 deadline, the City will not issue a building permit unless FDEP has issued the CCCL
permit. The application file for the CCCL permit was determined to be complete as of October
12, 2007 by Celora D. Jackson of the Bureau of Beaches and Coastal System of FDEP. The
CCCL permit is required to be issued within 90 days of October 12, 2007. As such, we expect
Greenberg Traurig, p.A.1 Attorneys at Law 11221 Brickell Avenue I Miami. FL 331311 Tel 305.579.0500 I Fax 305579.0717 I www.grlaw.com
MIA 179765972v1 10/22/2007
34
Mr. Robert Solera
October 29, 2007
Page 2
FDEP to issue the CCCL permit by mid-January of 2008. Accordingly, we expect the building
permit to be issued immediately following the issuance of the CCCL permit in mid-January,
2008.
Again, thank you for your consideration of this application. If we can provide you with
additional infonnation or documents or should you have any additional questions in this regard,
please do not hesitate to contact me at (305) 579-0613.
Enclosure
ft:~-f~
~ Clifford A. Schulman
cc: Hans Ottinot, Esg.
Mr. Jorge Vera
Ms. Elena del Campillo
Mr. William Rudnick
Mr. Tom Yianilos
Ms. Karla Rooks
Mario Garcia-Serra, Esq.
N. Patrick Range, Esq.
Greenberg Traurig. P.A.
MIA 179765972v110/22/2007
35
Comfort Homes Development ./no.
1671/. Col/ll/$ .1. vt!.# 1903, SII""-,, I.tles BefJc:I,;. Florida 3.~U60 Plt:J{)$-949-622/, Fitx:646-j{J4~I670
MWich 21, 2007
rt~ ~ ~. ~, ~W lE~
IF\l. i',:,~ < 2 Z007 UJ
. '~~D'1..,O
PLANNING &.ZONING -DEPT.
Mr. A. John Szerlog
City Manager
CitY Qf~Llnny ISile eeac:;h.
18070 CbllinsAve.
Sdnnyls.ies Beach, FL 33160
Re: L.etter of Inte.ntforExtensionofTirne
for aPre,ViousJy Approved. Site Plan
De~rMr.Szerlog:
In accordance with Section 265-18.-J of the Municipal Gode of the City of Sunny Isle
'Beach, please accept this letter of intent as 'Comfort Homes Development Inc.'s
appli~tion foreX1ensh:m of time for ap.re.viously approved site plan, PrOject No.2Z0q4~
01 j which wasapproveq by the City of .sunny rslesBe'aco on March 2.2,2005 oh the
following property:
22Q-t80Dtive, SUhnylsles Beach, Florida 33160
We' . respectfully request that the extens.ion of time be limited to two' years. This
additional timewi/l be used to complefeourconstrYGtion documents and allowed the
existingresidentiai market to improve. We assure you and the CityCqmmissiQo that it is
ourintentto carry orfwithour projecfto fUlldevelOPl11ent.We thank.you in advance.
Respectfuffy submItted,
ze:.. ~~'1.
i2. /.' . .
--:'f'~~.x;/.ff~~~
~.~~v
COrtlfort Horn.es DeVelopment Inc.
36
To:
Via:
From:
Date:
Re:
City of Sunny Isles Beach
18070 Collins Avenue
Sunny Isles Beach, Florida 33 160
City Commission
Norman S. Edelcup, Mayor
Lewis J. Thaler" Vice Mayor
Roslyn Brezin Commissioner
Gerry Goodman Commissioner
George "Bud" Scholl, Commissioner
(305) 947-0606 City Hall
(305) 792- J 565 Fax
(305) 947-2150 Building Department
A. John Szerlag, City Manager
Hans Ottinot, City Attorney
Jane A. Hines, City Clerk
MEMORANDUM
Honorable Mayor and City Commission
A. John Szerlag, City Manager . ~
Jorge L. Vera, Assistant City Manager/ Service Division~ (\ ~
Doug Haag, Assistant City Manager / Finance DiviSiOU \J
January 16,2008
TDR's and Bonuses
Developer Reso Beach Collins Public Total
expiration Beach trust enhancemet streetscape parking TDR
Solis Nov.17/07 183,000 458,000 275,000 183,000 5,156,017 6,255,000
Da Vinci Dec.08/07 179,000 298,000 179,000 119,000 3,959,713 4,734,000
Regalia 0 166,460 99,876 66,584 3,214,592 3,547,000
Tropez 2 July 20108 0 0 0 0 1,162,616 1,162,000
CHI Oct.17/08 266,700 444,500 266,700 177,800 3,749,268 4,904,000
Ocn
Beach Nov.16/08 312,000 520,000 312,000 208,000 6,810,168 8,162,000
Sept
Fairmont 20109. 458,600 1,146,500 687,900 458,600 0 2,751,000
Total 1,399,000 3,033,000 1,820,000 1,212,000 24,052,000 31,518,000
The table above depicts the total contribution that the approved projects will be
providing to the City at the time a building permit is obtained. The City has collected
10% of the TDR amount shown above for each project as per our code. The table
also shows the expiration date for each development approvaL As of 9/30/07 the
CIP fund had $26,161,000 per FY07/08 budget. All total amounts shown above have
been rounded to the nearest thousand.
The City Commission has given time extensions for two developments for the
submittal of the TDR's funds. Those developments are Solis and Regalia which have
acquired permits.. All other bonus contributions have been submitted for these two
developments. Out of the total contribution for the TDR's shown above for these
two developments, they still owe the City the following amounts:
37
Memorandum
January 16, 2008
Page 2
Solis
Regalia
$1,820,208
$1,285,614
Due Jan. 31,2008
Due Sept. 30, 2008
The City Commission also approved an extension of time on the development order
for the Da Vinci project to acquire a building permit.
Da Vinci $4,734,000
Due March 15, 2008
There is a private bank that two separate developers own TDR's on. As of the date
of this memo neither developer has sold the TDR's to another developer or used
them for a development of their own. These TDR's came from the original Porto
Bellagio TDR bank which allowed a total of 5 years for the use of the TDR's. The
expiration date for the developer to use their TDR's or loose them is January and
April of 2010.
In the event that the other developments do not obtain a building permit or receive
an extension within the time frames of the development order, the total CIP revnues
to the City would be reduced by $21,716,000.
Epicure, Sunny Isles Marina and Oceanika are developments that have Commission
approvals but there is no contribution to be made to the above mentioned funds. In
addition to the contribution to the funds, all developments must pay building permit
fees and impact fees for Police, Parks and Facilities at the time that a building permit
is obtained. These fees do not affect the CIP fund. The total of these impact fees for
all developments that have Commission approval but have not obtained a building
permit are estimated to be as follows:
Building Permit
Police
Parks
F acili ties
$ 3,250,000
$ 250,000
$ 1,100,000
$ 720,000
38
FUNDBALANCE PROJECTIONS BASED ON TDR PAYMENT EXTENSIONS
FIRST EXTENSION - GREATER OF 15% OR $500,000
SECOND EXTENSION - GREATER OF 15% OR $500,000
CIP Fund Balance Projections
CIP Stormwater
Fund Fund Total Description
$26,161,026 $3,845,891 $30,006,917 Projected Fund Balance as of 9/30/2007
FY 07-08 Transactions
$0 Revenues
$2,414,388 $2,414,388 Revenues - CIP - Mansiana
$4,432,241 $4,432,241 Revenues - CIP - DaVinci
$1 ,283,354 $1 ,283,354 Revenues - CIP - Trooez 2
$0 $0 Revenues - CIP - Paramount
$3,000,000 $3,000,000 FOOT Grant
$200,000 $200,000 FRDAP Grant - Pelican Park
$900,000 $900,000 DEP Grants
$0 $300,000 $300,000 DEP Grant - 172nd Street Drainaae
$0 $328,000 $328,000 DEP Grant - Atlantic Avenue Stormwater
$17,350 $2,425,579 $2,442,929 Miami-Dade Countv GOB funds
$0 $0 State of Florida - Atlantic Isle & 172nd Street proiects
$150,000 $150,000 Excess 0 & M Revenues - Exoenses
$1,125,000 $75,000 $1,200,000 Interest
$7,210,000 $7,210,000 General Fund Transfer
$886,000 $886,000 $0 Transfer from CIP to Stormwater for Central Island Drainaqe
$2,210,000 ($2,210,000 Debt Retirement
($5,000 {$5,000 Collins Avenue - Median Fencinq
($7,571,663 ($7,571,663 Central Island Drainaae
($339,000 $339,000 Gwen Margolis park - Drainaae Imorovement
$250,000 $250,000 Government Center Modifications
$540,000 $540,000 Pedestrian and Emeraencv Vehicular Bridqe
$375,000 $375,000 Town Center Park - Observation Deck & Boardwalk
($1,033,315 ($1,033,315 Collins Avenue Streetscaoe - Phases III, IV & V
$0 $0 FPL Underoroundinq Phase 1 - Collins Ave 185th - 194th
$2,500,000 $2,500.000 Wireless Island
$3,202,012 $3,202.012 Sunnv Isles Boulevard
$6,000,000 $6,000,000 Land Bank
($522,000 1$522,000 FPL Undergroundina - 172nd Street
($1,200,000 ($1,200.000 Roadwav Improvements
($2,300,000 ($2,300,000 Atlantic Avenue Sanitary
($870,000 $870,000 Atlantic Avenue - Underaroundinq and Street Liqhtinq
($656.006\ $656,000 Atlantic Avenue - Stormwater
$250,000 $250,000 Pelican Park
$100,000 $100.000 Collins Avenue Siqnaqe
$188,000 {$188.000 Collins Ave Median Closure
$150,000 ($150,000 Town Center Park Restrooms & Liahtina
($1,000.000 ($1.000,000 Heritaqe Park/Splash Pad and Garaqe
($150,000 {$150,OOO Water Taxi/Landscaoe Park
($25,000 ($25,000 Beachwalk - Samson Park
$0 Continaencies
($250.000\ ($250.000\ 174th Street Landscaoina
$0 $0 Pier Improvements - TBD
$21,837,032 $343,807 $22,180,839 Orlalnal Projected Fund Balance as of 9/30/2008
ProDosed Amendments to FY 2007/08
$0 Revenues:
$7,000,000 $7,000,000 Other Revenues - DOJ
{$4,432,241 {$4,432,241 Da Vinci
($1,283,354 $1 ,283.354 St Trooez 2
$500,000 $500,000 DaVinci - Min oayment for 1 year extension
$500,000 $500,000 Tropez 2 - Min payment for 1 vear extension
$0 EXDenses:
$1,571,663 $1,571,663 Central Island Drainaae - Adiustment for Rev Estimate
1/14/2008
39
FUNDBALANCE PROJECTIONS BASED ON TDR PAYMENT EXTENSIONS
FIRST EXTENSION - GREATER OF 15% OR $500,000
SECOND EXTENSION - GREATER OF 15% OR $500,000
. . .. . . . .
. .
. . . . . - . .
($2,000,000 ($2,000,000 Newport Pier
($55,000 ($55,000 Doo Park
$350,000 $350,000 Temporarv Pedestrian Bridoe
$500,000 $500,000 General EnaineerinQ ConsultinQ
$300,000 $300,000 Construction Manaoement - 172nd & Atlantic isle
($1,000,000 ($1,000,000 Atlantic isle BridQe
($9,000,000 ($9,000,000 Other Exoenses
$2,000,000 $2,000,000 Wireless Island
$886,000 ($886,000) $0 Transfer from CIP to Stormwater for Central Island DrainaQe
$339,000 $339,000 ~=~~~3rainaoe Improvement
. ,. 1II$D$]f47101 IJ$}tqjfflit'f[l!l]lJ I se r c IU:IIBala:nc'9Ias~ou9100Z2b08..l._!';;;';'~~~,?,<;j
FY 08-09 Transactions
$13,267,636 $13,267,636 Revenues - CIP - CHI and Ocean Beach
$0 Grant Proceeds
200,000 $200,000 Excess 0 & M Revenues - Expenses
$850,000 $0 $850,000 Interest
$5,210,000 $5,210,000 General Fund Transfer
($2,210,000) ($2,210,000 Debt Retirement
($5,000) ($5,000 Collins Avenue - Median FencinQ
($250,000) ($250,000 Central Island Drainaae
($3,620,000 ($3,620,000 Pedestrian and EmerQency Vehicular BridQe
($665,000 ($665,000 Town Center Park - Observation Deck & Boardwalk
($380,000 ($380,000 Wireless Island
($6,000,000 ($6,000,000 Land Bank
($100,000 ($100,000 Atlantic Avenue - Underoroundina and Street Uahting
($6,500,000 ($6,500,000 Heritaae Park/Splash Pad and GaraQe
($1,500,000 ($1,500,000 Collins Avenue Streetscaoe - Phases III, IV & V
($250,000 ($250,000 Sunnv Isles Boulevard
Pro Dosed Amendments to FY 2008/09
Revenues:
($13,267,636 ($13,267,636 Chi and Ocean Beach
$500,000 $500,000 DaVinci - Min oayment for addl1 year extension
$500,000 $500,000 Tropez 2 - Min pavment for addl1 vear extension
$1,000,000 $1,000,000 Chi and Ocean Beach - Min payment for 1 year extension
EXDenses:
$250,000 $250,000 Central Island DrainaQe
$355,000 $355,000 Wireless Island lift'rf'tilt:lalancems~o~
,5-8 , . 'fZ
FY 09-10 Transactions
$2,751,600 $2,751,600 Revenues - CIP - Turnberrv/Fairmont
$0 Grant Proceeds
$4,210,000 $4,210,000 General Fund Transfer
$2,210,000) ($2,210,000 Debt Retirement
$450,000 $0 $450,000 Interest
($100,000 ($100,000 Master Thorouahfare Plan
($1,000,000 ($1,000,000 Pedestrian and Emeraencv Vehicular Bridoe
($540,000 ($540,000 Town Center Park - Observation Deck & Boardwalk
($135,000 ($135,000 Wireless Island
$6,500,000 ($6,500,000 Heritaoe Park/Solash Pad and GaraQe
$3,000,000 ($3,000,000 Collins Avenue Streetscaoe - Phases III, IV & V
$6,000,000 ($6,000,000 Land Bank
($100,000 ($100,000 Fountain - Sunnv Isles Blvd
ProDosed Amendments to FY 2009/10
Revenues:
1/14/2008
2
40
FUNDBALANCE PROJECTIONS BASED ON TDR PAYMENT EXTENSIONS
FIRST EXTENSION - GREATER OF 15% OR $500,000
SECOND EXTENSION - GREATER OF 15% OR $500,000
CIP Fund Balance Projections
CIP Stormwater
Fund Fund Total Description
$3,432,241
$283,354
$1,000,000
$110,000
$3,432,241 DaVinci - Balance Due
$283,354 Tro ez 2 - Balance Due
$1,000,000 Chi and Ocean Beach - Min a ment for addl1 ear exten
$0 Ex enses
$110,000 Wireless Island
1(;;;-'.;.", l .4~) r ';P,'J!"r.vij'
aii,l-...'~ ~~i,.'\., ')l~")..:ll" '1 ::,~~
1/14/2008
3
41
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City of Sunny Isles Beach
18070 Collins Avenue
Sunny Isles Beach, Florida 33160
(305) 947-0606 City Hall
(305) 949-3 I I 3 Fax
(305) 947-2150 Building Department
(305) 947-5 107 Fax
City Commission
Norman S. Edelcup, Mayor
Lewis J. Thaler, Vice Mayor
Roslyn Brezin, Commissioner
Gerry Goodman, Commissioner
George "Bud" Scholl, Commissioner
A. John Szerlag, City Manager
Hans Ottinot, City Attorney
Jane A. Hines, CMC, City Clerk
MEMORANDUM
TO:
A. John Szerlag, City Manager
~
FROM: Priscilla Walker, CMC, Deputy City Clerk
DATE: February 25, 2008
RE: Approval of Voluntary Time Extensions Program for Development Approvals
and Transfer of Development Rights
At its regular meeting of February 21, 2008, the City Commission adopted Resolution No.
2008-1222, which approved the above-referenced item. Attached is a copy of the approving
legislation for your files.
Thank you.
/pw
Attachments
cc: Hans Ottinot, City Attorney
Jorge L. Vera, Assistant City Manager/Services
Doug Haag, Assistant City Manager/Finance
Clay Parker, Building Official! Administrator
Robert Solera, Community Development Director
Voluntary Time Extension For Development Trans Memo