Legal Report, March 2016
League General Counsel, Jennifer G. Ashton
Corbett, White, Davis & Ashton, P.A.
1. Brad Buehrle v. Key West, --- F.3d ---, 2015 WL 9487716 (11th Cir. 2015) (Tattoo Establishments and First Amendment Rights).
The City of Key West prohibited tattoo establishments in its historical
district and only allowed tattoo establishments as a conditional use in the
General Commercial District. Brad Buehrle applied for and was denied a
business license to operate a tattoo establishment in the historical district.
Buehrle filed suit and argued the ordinance was an unconstitutional
restriction on his freedom of expression, which was protected by the First
Amendment. The district court granted summary judgment for the City and
concluded that although the act of tattooing constituted protected speech, the
City’s ordinance was content neutral and a reasonable time, place, and
The federal appeals court agreed that the act of tattooing was protected by the First Amendment. However, the court reversed the district court’s ruling on grounds that “the right to display a tattoo loses meaning if the government can freely restrict the right to obtain a tattoo in the first place.” A content neutral and reasonable time, place, and manner restriction must be justified without reference to the content of the regulated speech; be narrowly tailored to serve a significant government interest; and leave open alternative channels to communicate the regulated speech. The court held the ordinance was an unconstitutional regulation of speech because the City was not able to demonstrate that it served a significant government interest. In evaluating the ordinance, the court pointed to its vague statement of purpose and lack of pre-enactment evidence to support the regulations. This case provides a primer on judicial analysis of local government legislation that may impose a content neutral restriction on the time, place, and manner of protected speech.
2. Save Calusa Trust v. St. Andrews Holdings, Ltd., --- So.3d ---, 2016 WL 145997 (Fla. 3d DCA 2016) (Restrictive Covenants and Florida’s Marketable Record Title Act).
In 1967, a developer sought zoning approvals to develop a golf course community in an area of unincorporated Miami–Dade County. The developer received two zoning changes as part of the approval process: (i) single-family homes were allowed to be placed in a ring around the golf course; and (ii) an “unusual use” approval was granted to establish open space for the golf course, clubhouse, and driving range. The “unusual use” approval was conditioned upon the recording of a restrictive covenant to ensure that the golf course would remain a golf course. The restrictive covenant stated that it could be changed only with BCC approval and with the consent of 75% of the homeowners in the ring area (Save Calusa Trust). After the unusual use approval was granted, 140 homes were built around the golf course.
During the economic downturn of the early 2000s, the golf course property was acquired by two entities (Owners) that were unable to successfully operate the golf course and sought to redevelop the property. Miami–Dade County refused to process the Owners’ applications for rezoning because they did not have the required consent from Save Calusa Trust to modify the restrictive covenant. Owners filed suit in circuit court seeking to declare the restrictive zoning covenant void and extinguished under Florida’s Marketable Record Title Act (MRTA). MRTA attempts to simplify conveyances of real property by establishing a thirty-year date of original title, which limits record searches and extinguishes old, unused, property interests. The circuit court held that MRTA extinguished the restrictive zoning covenant. Save Calusa Trust and Miami–Dade County appealed.
Florida’s Third District Court of Appeal reversed and held that although the restrictive covenant was recorded, it was not a hidden interest in property that MRTA sought to extinguish. Rather, the restrictive zoning covenant was a government-imposed restriction and could not be extinguished by MRTA.
3. Alvey v. North Miami Beach, --- So.3d ---, 2015 WL 8937617 (Fla. 3d DCA 2015) (Following Ordinance Criteria in Quasi-Judicial Proceedings).
A developer sought to rezone property in the City of North Miami Beach from multi-family residential to general business. The developer proposed to construct two ten-story hotel buildings, a six-story office building with retail space, and a four-story parking garage. Although the property was initially multi-family residential, the surrounding properties in this area were designated limited business with a height restriction of two-stories. The purpose of the limited business zoning district was to limit businesses in the area to a “convenience nature,” which served “the essential and frequent needs of adjacent residential neighborhoods.” All properties that were not designated limited business zoning, including the developer’s property, were reserved for more restrictive uses. The City Council approved the rezoning and the developer made no presentation at first reading. At second reading, the developer made no presentation and the Council tabled the application for further consideration at third reading. At third reading, the developer’s presentation focused on the testimony of experts who concluded that the application was compatible with businesses in the Biscayne Boulevard area. The City unanimously approved the rezoning and cited the development’s financial benefits as the basis of approval.
Neighboring property owners appealed the approval to the circuit court. The circuit court upheld the City’s decision on grounds that it was supported by competent substantial evidence in the record. The neighboring property owners then appealed to Florida’s Third District Court of Appeal for second-tier review. The Third DCA reversed the circuit court’s decision and found that both the City and the circuit court failed to apply the correct law. In its analysis, the Third DCA pointed to the section of City’s code that mandated any proposed change be “consistent with and in scale with the established neighborhood land use pattern”. The City used the incorrect standard in finding that the use would be compatible with the general area and would provide financial benefits to the city. This case provides an illustration of how important it is for local governments to follow the standards set forth in their zoning codes when reviewing and approving applications for rezoning.