Miami Shores Village is about to experience a change in direction with the new council majority now composed of three members who have consistently spoken out against a proposed comprehensive plan.

Read the Biscayne Times article here.

On Wednesday, March 29th, Governor Ron DeSantis signed SB 102, also known as the “Live Local Act,” into law. The law is an attempt to make housing more affordable in Florida. Among the many components of the law is a preemption of local government regulations on land use designation, density and building heights in certain circumstances. Read the Bill HERE (See Page 16; Lines 446-496)

There is a lot of discussion about how this would affect MSV so MSVPlan has reviewed and broken down the law, as it would apply to Miami Shores. 

When does the law take affect?

July 1, 2023

When does the law sunset?

October 1, 2033

What type of development must be allowed under the law?

For the provisions of the Act to apply, a proposed development must be:

(1) rental;

(2) has at least 40% affordable housing as defined by the law for a period of at least 30 years;

(3) seeks to be built in a zone designated as mixed use (doesn’t exist in MSV comp plan), commercial or industrial (doesn’t exist in MSV comp plan); and,

(4) mixed-use in nature with at least 65% square footage as residential (Multifamily development is also required to be authorized under the law if the municipality has more than 20% commercially designated land, which Miami Shores does not).

What regulations apply to these types of developments?

Zoning regulations for multifamily development apply.

The law has preempted the municipality’s ability to restrict the density and height to a certain degree.

Is the density and height unlimited under the law?

No – the density and height are restricted by what’s currently allowed under the current comprehensive plan and zoning code.

The 2025 Comprehensive Plan, as adopted in 2018, is the currently controlling comprehensive plan in MSV.

Current maximum allowable density: 6 units/acre (Multifamily)

Note: Had the original proposed comprehensive plan been passed in summer of 2022, as approved by Vice Mayor Marinberg and Councilperson Katia Saint Fleur, the max density in our comprehensive plan would be 65 units per acre (Biscayne Corridor).

Current max allowed height: max commercial or residential height allowed within one mile of the proposed development or three stories, whichever is higher (max height would depend on location; currently highest commercial height allowed in MSV is 50 feet on Biscayne Blvd)

What parts of Miami Shores would this apply to?

This would ONLY apply to any land designated as commercial (because MSV does not currently have land designated as mixed use or industrial).

This does not apply to single-family residential property or institutionally designated property.

Would this currently apply to the Barry property?

No – the Barry property is currently designated as Institutional (not commercial, mixed use or industrial)

What if Barry is returned to the 2010 designation as Mixed Use Residential/Industrial?

There could be an argument that the law would apply then, yes. The density would be controlled by the max density allowed in the controlling comprehensive plan (currently 6 units/acre) and the height would be controlled by the max height on 2nd avenue (currently 40 feet).

Would this apply to 10500 Biscayne Blvd?

No, it is currently designated as Multifamily (not commercial, mixed use or industrial)

Would this currently apply to the Biscayne Blvd corridor?

Yes – since it is designated as commercial, the law would require that MSV approve a mixed-use development proposal so long as it met the requirements listed above.

Current max density: 6 units/acre.

Current max height: 50 feet (current max height on Biscayne Corridor)

Multifamily zoning requirements would apply.

Would this apply to 2nd Avenue commercial corridor?

Yes – since it is designated as commercial, the law would require that MSV approve a mixed-use development proposal so long as it met the requirements listed above.

Current max density: 6 units/acre.

Current max height: would depend on the exact location but 50 feet (current max height on Biscayne Corridor) is likely max height.

Multifamily zoning requirements would apply.

Other areas of MSV that would be impacted:

Commercially designated properties along 6th Avenue: Yes, since these are designated as commercial currently, the law would require that MSV approve a mixed-use proposal so long as it met the requirements listed above.

Are currently designated multifamily properties subject to mixed used?

No. The preemption only applies to proposed development on commercial, industrial and mixed-use designated land.

Are parking requirements waived for these developments?

No, however the law requires that a municipality “consider reducing parking requirementsif the development is located within one-half mile of a major transit stop, as defined in the municipality’s land development code, and the major transit stop is accessible from the development.”

MSV land development code does not currently define “major transit stop”

The Village Council has voted to not renew the moratorium on the acceptance, review, and consideration of applications for rezoning and/or future land use map (FLUM) amendments when it expires on April 6th despite the fact that the comprehensive plan remains unfixed and internally inconsistent, potentially exposing the Village to liability. 

On March 20th, the DEO returned comments on the Comprehensive Plan Amendment as passed on December 14th. 

As of the date of this letter, the State continues to review the Comprehensive Plan Amendment as adopted on February 21st.

On March 3rd, the Department of Economic Opportunity notified the Village that they had received and began processing the Comprehensive Plan Amendment package (passed on February 21st) and anticipated returning it to the Village on or around April 29th, 2023. 

On February 21st, Council conducted a "redo" transmittal hearing  (also known as the "first reading")  for the Comp Plan amendment due to legal defects in the public notice that was published for the December 14th hearing (failed to advertise Notice of the December 14th hearing in a newspaper of general circulation within Miami Shores, as required by Florida law.).

At this hearing, the Council approved the Amendment for the 4th time, this time with additional changes, which were introduced by the new council members. 

Summary of changes to Comprehensive Plan Amendment as passed on February 21, 2023.

Downtown Mixed Use land use category:

Added a 3 story height cap. (line 285)

Neighborhood Mixed Use land use category (Barry and 105thStreet):

Added a mandatory directive to incorporate Zoning requirements for staggered set backs (line 316)

Added a requirement that the 10500 Biscayne Boulevard property have at least 80% residential uses (line 324-326)

Increased the height cap to 40 feet (previously 35 feet) (line 338)

General Commercial Land Use category:

Modified the FAR to 2.0 (originally 1.0, changed to 3.0 on October 6th) (line 420)

After repeated attempts by members of the public to inform the Village Council and Staff of legal deficiencies related to the notice advertisement of the December 14th Comp plan hearing, the Council has finally responded. On Tuesday, February 7th, Council voted to "redo" the transmittal hearing (also known as the "first reading") on the Comprehensive Plan amendment because the Village failed to advertise Notice of the December 14th hearing in a newspaper of general circulation within Miami Shores, as required by Florida law.

Now, the Council will vote once again on the Comprehensive Plan Amendment at the redo transmittal hearing on February 21 @ 6:30pm.

Since the December 14th transmittal hearing, the Village has had substantial changes to the make up of the Council with the resignation of Katia St. Fleur and Crystal Wagar. The Council now consists of:

Mayor Sandra Harris - sandraharris@msvfl.gov

Vice Mayor Dan Marinberg - danielmarinberg@msvfl.gov

Alice Burch - aliceburch@msvfl.gov

Timothy Crutchfield (newly appointed) - timothycrutchfield@msvfl.gov

Wesley Castellanos (newly appointed) - wesleycastellanos@msvfl.gov

If you haven't reached out directly to your newly appointed Councilmembers to share your concerns on the Comprehensive Plan amendment and its concomittant impacts on the small-town character of our Village beautiful, please take a minute now to do so. It is important they hear the Voices of our Village.

Additionally, many in the community are unclear about what this means or what to expect. Here are some of the frequently asked questions about the issue.

Frequently Asked Questions

(and some, but not all, answers)

Q: Why do non-elected council members get to vote on something as significant as the comprehensive plan which dictates the future development in our Village?

A: Great question! (Sorry, we don't have an answer to that.)

Q: Will the non-elected council members vote in favor of the amendment?

A: It’s unclear where they stand exactly. Timothy Crutchfield has expressed interest in putting the Biscayne Corridor mixed-use zone, which included about 1600 potential residential units, back into the plan.

Q: If the Council passes the comp plan amendment on this 4th attempt, is it a done deal?

A: NO! It must be voted on again (adoption hearing) after the state reviews it.

Q: Will the adoption hearing be before the April election or after?

A: It depends, but let’s hope the hearing is after the election!

Q: Can we prevent the 2nd vote from taking place before the April election?

A: It depends on what happens on Tuesday!

The Charter Review Committee “(CRC”) presented its recommendations for twelve amendments to the Village Charter at the January 17, 2023 Village Council Meeting. The Council is required to “approve, amend or reject the recommendations of the [CRC], and by resolution adopt a final draft of the proposed … amendment …which shall be submitted to the electors” in question format on the ballot.  The election is April 11, 2023.

The Village Council will hold a Charter Amendment Workshop on Wednesday, February 1, 2023 at 6 p.m. at 9900 N.E. 2nd Avenue.

CRC’s 12 Recommended Charter Amendments

The CRC recommended that the following twelve amendments be made in the Village Charter, which is described is the Village’s “constitution:”

1. technical and stylistic to fix inaccuracies, re-number and add gender neutral terms;

2. citizens’ bill of rights to increase the public’s rights in its interactions with the Village;

3. procedure for run-off elections in the event of a tie;

4. election affiliations to require candidates for Council to run independently of other candidates and to refrain from using joint campaign literature (does not affect endorsements of multiple candidates by third parties, individuals or organizations);

5. non-partisan elections to prohibit party designation of candidates on ballots or campaign literature as Florida law requires;

6. residency requirement to increase the six-month candidate residency requirement for continuously residing in Miami Shores to two years (note: the residency for certain Village Board appointments is one-year);

7. sale and lease of municipal property to require a majority of the electors to vote on the sale or lease of Village-owned property (e.g. public works land, the golf course, parks, parking lots, Village Hall, the library, etc.);

8. charter review amendments to set a frequency for charter review to occur at ten-year intervals from the most recent review at a minimum or more frequently, if needed;

9. conflicting charter amendments to add a provision that allows the charter amendment with the most affirmative votes to prevail when conflicting amendments are approved by the voters;

10. prohibition on interference to prohibit the Council or individual members from interfering with the Village Manager in employment decisions of any Village employees whom the Village Manager is empowered to appoint and requiring the approval by the Village Manager or delegate before a Village employee must honor the request of the Council or council member’s to undertake a task that will require substantial time;

11. growth management to require all growth or development in the Village preserve the Village’s single-family residential character and minimize the intrusion of incompatible development or land uses onto single family residential areas; and

12. height limitation to cap heights of buildings or structures in the Village to a maximum of forty feet.

Village Attorney’s Advice

The Village Attorney advised the CRC and Council of potential legal challenges regarding the following three proposed Charter amendments:

#4 election affiliations: The VA advised that “there may be legal implications as a result of the prohibition on issuing joint campaign literature under the First Amendment;”

#6 two-year residency requirement: The VA advised that “the Village may be exposed to a legal challenge, as there are some opinions that raise concerns [sic] such qualification requirement.” At the meeting where the CRC voted to adopt the recommended amendment, the VA expressed more comfort with a one-year residency requirement due to legal decisions that upheld a one-year residency requirement; and

#12 height limitation: The VA advised against the height limit provision in the Charter on the ground that “the inclusion of land use/zoning regulations in municipal Charters could potentially expose the Village to litigation.” The VA explained this amendment was brought by the CRC at the last meeting and stated that some municipalities choose to include height restrictions.

Council’s Concerns

Some council members expressed concerns about the following amendments:

#4 election affiliations: several council members opposed the prohibition of Council candidates running joint campaigns and using joint campaign literature because it would create more problems than it would solve and would make it difficult for the Village to enforce under its Charter;

#6 two-year residency requirement: several council members opposed the two-year residency requirement due to the potential legal challenge and that it may limit the choice of voters that would like new residents with experience to be able to run for Council;

#7 sale and lease of municipal property: several council members opposed such amendment for various grounds including that it would interfere with the Village’s ability to dispose of or lease property and interfere with the Village’s ability to raise revenue. License and use agreements do not afford the same protection as a lease. A council member suggested possibly requiring a supermajority vote by the Council for the sale or lease of property; limiting the need for public vote based on size or dollar amount of property; and leave flexibility to operate at least on small-scale property. Another council member suggested more defined terms; and

#11 growth management and #12 height limitation: several council members did not want the Charter to contain what they believe should be in the Comprehensive Plan or Zoning Code.

Some council members raised repetitive concerns on various proposed Charter amendments because they claim:

• The Charter is difficult to amend and it should not be so restrictive as to impair the flexibility of the Village to conduct its affairs or limit the will of future resident voters who may have different issues and priorities than current resident voters.

• The Comprehensive Plan has language: that protects the single-family residences; that protects and preserves natural resources and scenic beauty as contained in the proposed citizens’ bill of rights amendment; and the current amendments to the Comprehensive Plan contain height caps in Mixed Use that conflict with the height limitation amendment.

Vice Mayor Marinberg’s Proposed Charter Amendments:

Vice Mayor Marinberg (“VM Marinberg”) suggested two new Charter amendments that were not part of the CRC’s recommendation:

1. Moving the Biennial Election Date from April to November

VM Marinberg: opined that it would provide for increased voter participation and cost-reduction by piggy-backing the general election. If moved, Miami-Dade County elections could provide a special ballot for Miami Shores Village issues such as Charter amendments and Council elections.

CRC: unanimously rejected a change of the election date for the Village from a special election in April. The Charter provides for the Village election to be held on the second Tuesday in April in odd numbered years. This year’s election is April 11, 2023.

2. Recall, initiative and referendum

VM Marinberg: expressed an interest in increasing the number of electors needed to sign a petition based on the increased population of the Village since the last Charter review in 1994.

VA: advised a Florida Statute governs.

_______

The Charter authorizes the Council to adopt, reject or amend the Charter Amendment recommended by the CRC.  However, the Council’s discretion to amend the CRC’s recommended Charter amendments may not be unlimited according to Richard Sarafan, the former Village Attorney. See Footnote 1 of the Memorandum from Richard Sarafan to the Council for the July 6, 2021 Council Meeting Agenda item regarding Discussion and Possible Action regarding a Charter review

All four members voted to appoint Tim Crutchfield to the Miami Shores Village Council for the remainder of Katia Saint Fleur's term (until the April election). There was no discussion by Council as to their reasons for choosing Mr. Crutchfield. Mr. Crutchfield did not disclose his position on the comprehensive plan amendment, nor was he asked by Council when given the opportunity.

On December 22, 2022, Crystal Wagar and other municipal officials around the state filed a suit against the state of Florida Ethics Commission to challenge the lobbying restriction, which is to take effect on January 1, 2023. This law resulted from a constitutional amendment approved by 80% of the electorate in 2018. The provision prohibits lobbying by certain public officers both during public service and for a six-year period following their vacation of public office. Read more about the law here.

Wagar's lawsuit argues that the law unjustifiably and unconstitutionally restricts the Plaintiffs’ core political speech rights, associational rights, and rights to petition the government. 

Despite the constitutional amendment having passed in 2018, Wagar and her co-plaintiffs waited until 9 days before the law is to take effect before filing their suit. This morning the Court agreed with the State that the Plaintiffs' delay in filing their suit was not deserving of emergency treatment and denied their request to stay the implementation of the law pending the outcome of the case. The result is that Wagar and her co-plaintiffs could face liability if they may retain their seats in office and their paid positions as lobbyists once the law takes effect on January 1st.

At the outset of the meeting, Council voted to change the order of business so that public comment would not precede the Council discussion of the ordinance. Instead, they changed the typical order of events and held their discussion first, which pushed public comment to later in the meeting. Council also chose to apply a rule for public comment that has been bypassed in recent meetings. This rule restricts any public comments after 9pm to 1 minute, instead of the usual 2 minute allotment.

Council discussion lasted for approximately 2 hours, most of which was dominated by Vice Mayor Marinberg’s presentation. Councilwoman Burch implored her colleagues to retain the multifamily designation at 10500 Biscayne Boulevard, and omit commercial uses from the allowable uses, as recommended by the consulting firm, but she had no support whatsoever.

At approximately 8:30 pm public comment commenced - leaving only 30 minutes for the 2 minute public comments, and all public comment after 9pm being restricted to one minute per person. Approximately 30 attendees identified themselves as employees of Barry University or of the law firm representing Lennar and Barry. Of the Barry employees & legal representation that made public comment, many were not residents or property owners of Miami Shores.

Despite this show, public comment was once again overwhelmingly in opposition to the amendment. At the end of live public comment, the Clerk read 30 ecomments into the record. Public comment continued until approximately 11pm, even despite the restrictions placed on the community's ability to speak.

Following public comment, council did not engage in further discussion, ignoring issues raised during public comment, and voted 4-1 to pass the amendment. Councilwoman Burch was the single dissenting vote.

The remainder of the meeting was spent discussing the new vacancy created by Councilwoman Saint Fleur’s resignation and the process that would be used to select her replacement. During the discussion, Councilwoman Saint Fluer explained that her upcoming resignation was due to a new statute that takes effect December 31st, prohibiting paid lobbyists from holding public office during their terms and after their term for a period of 6 years.

The discussion of the process revealed an urgent wish by certain members of council to have a replacement in place prior to the end of the year. This would require that a special meeting be scheduled and that the period of time for interested parties to apply be unreasonably brief. Council urged to set a meeting for December 28th, despite the Clerk being on leave at that time and requiring her to conduct remote work.

Saint Fleur announced an official resignation date of December 15th. Council announced they will open the position to applicants on the same day, and will allow 7 days for candidates to present applications, with a deadline for application packet submission at 5:00pm on December 22nd.

Applicants will be reviewed, and Council intends to vote in Saint Fleur’s replacement at a special meeting on December 28th.  Each applicant will have 5 minutes to speak at the meeting, and the remaining 4 council members may vote on and elect a replacement by a majority vote at that time.

Council members also noted that scheduling conflicts due to the Holiday Season may make it difficult to partake in the meeting, but reiterated their wish to elect Saint Fleur’s replacement prior to the end of the 2022, despite their being a regularly scheduled meeting on January 3rd.

Charlie Gauthier, FAICP, expert in growth management, comprehensive planning and land use planning with over 45 years experience in Florida, submits opinion letter to Village recommending that the proposed comprehensive plan amendments go back to the drawing board to resolve issues including conflict with community character and lack of basis on relevant and appropriate data and analysis.

Mr. Gauthier’s extensive and impressive resume includes 17 years of leadership at the Department of Community Affairs (now known as the Department of Economic Opportunity). As a Growth Management Administrator, 724 local government amendment packages crossed his desk for formal state review; as Bureau Chief, there were 1,870 packages; as Division Director, another 2,500 packages.  All told, Mr. Gauthier played a leadership role in assuring that over 5,100 comprehensive plan amendment packages met the standards of Chapter 163, Florida Statutes.